FEDERAL COURT OF AUSTRALIA

CPZ16 v Minister for Home Affairs [2019] FCA 1204

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

2.    The first and second applicants pay the first respondent’s costs, to be assessed in default of agreement.

THE COURT NOTES THAT:

3.    The Court was not persuaded that it was appropriate to make an order for costs against the infant applicants.

4.    The first respondent has agreed not to recover costs from the first applicant for work referable solely to the applications of the third and fourth applicants.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The applicants seek leave to appeal an interlocutory order of the Federal Circuit Court of Australia made 23 August 2018 by which their application for reinstatement of a proceeding in that Court was dismissed: CPZ16 v Minister for Immigration [2018] FCCA 2251. The applicants had sought judicial review in the Federal Circuit Court of a decision of the Administrative Appeals Tribunal made 19 August 2016 by which the Tribunal affirmed a decision of the first respondent (the Minister) to refuse the applicants’ applications for protection visas.

Background

2    The first and second applicants, who are wife and husband, are citizens of Sri Lanka. They first arrived in Australia in June 2009 and March 2007 respectively. The second applicant entered Australia under a student visa, and the first applicant entered Australia as his dependent. The third and fourth applicants are their twin children, who were born in Australia in July 2013. The children are not citizens of Australia because they have not been ordinarily resident in Australia throughout a period of 10 years since their birth: Australian Citizenship Act 2007 (Cth), s 12. On 22 May 2019, I ordered that the first applicant be appointed litigation representative of the third and fourth applicants.

3    On 13 August 2013, some weeks after the birth of their twin children, the first and second applicants lodged separate applications for protection visas. The first and second applicants relied upon independent grounds on which they sought protection. The third and fourth applicants were named as being included in their parents’ applications.

4    On 20 June 2014, a delegate of the Minister refused the applications for protection visas. On 15 July 2014, the applicants sought review of the delegate’s decision by the Refugee Review Tribunal, as it was then constituted. The Administrative Appeals Tribunal conducted the review, and a hearing took place before the Tribunal on 19 May 2016. On 19 August 2016, the Tribunal determined to affirm the decision not to grant to the applicants protection visas. The Tribunal’s decision was accompanied by written reasons.

5    On 15 September 2016, the applicants filed an application in the Federal Circuit Court seeking judicial review of the Tribunal’s decision. Upon its filing, the application was listed for an initial hearing on 15 March 2017.

6    On 15 March 2017, the applicants did not appear at the hearing listed in the Federal Circuit Court. The Federal Circuit Court has power under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) to dismiss a proceeding if the applicant is absent from a hearing, including a first court date. By order of the Federal Circuit Court made 15 March 2017, the applicants’ application for judicial review was dismissed.

7    On 20 March 2017, the applicants filed an interlocutory application in the Federal Circuit Court styled “Application in a Case” seeking the following order –

Re-open the case and reschedule a date/time for the directional hearing.

8    The primary judge treated this application as an application under r 16.05 of the Federal Circuit Court Rules to set aside the orders that had been made on 15 March 2017. The application to set aside the orders was supported by an affidavit of the first applicant which stated –

The reson [sic] why I couldn’t make the hearing is I mixed up the paperwork and miss [sic] read the date and time.

9    The primary judge initially listed the application for reinstatement on 28 April 2017. On that occasion, the first and second applicants sought an adjournment which the primary judge granted in order that they could pursue a request for Legal Aid. The hearing took place on 2 June 2017. At all material times, the applicants were unrepresented before the primary judge.

10    On 23 August 2018, the primary judge dismissed the application for reinstatement of the proceeding. From that interlocutory order, the applicants seek leave to appeal to this Court.

The primary judge’s reasons

11    In considering the applicants’ application for reinstatement of the proceeding, the primary judge recognised that the power conferred by r 16.05(2)(a) of the Federal Circuit Court Rules to set aside orders involved the exercise of a discretion. In approaching the exercise of that discretion, the primary judge considered that three factors should be considered, namely: (1) whether the applicants had an adequate explanation for their non-appearance at the hearing on 15 March 2017; (2) whether there was any prejudice to the Minister if the proceeding were reinstated; and (3) whether the applicants had an arguable case. To support this approach, the primary judge cited CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4] (Mortimer J).

12    The primary judge had some doubts about the applicants’ explanation for their non-attendance at the hearing on 15 March 2017, describing their explanation as “less than satisfactory”. However, although his Honour entertained doubts, he acted on a concession by the Minister that the applicants had offered some explanation for their failure to attend the initial hearing of the application.

13    In relation to prejudice, the primary judge assumed in favour of the applicants that there was no prejudice to the Minister.

14    In relation to whether the applicants had demonstrated an arguable case for judicial review, the primary judge approached this issue on the footing that the applicants were not required to satisfy the court of the merit of their grounds to the same level that would apply at the final hearing, but had to persuade the Court that their grounds were arguable, citing MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63] (Mortimer J).

15    The primary judge summarised at [7] of his reasons the grounds on which the first applicant had sought a protection visa –

The first applicant stated that her father was a prominent member of the United National Party (UNP) and that members of that party often attended her family home. She stated that by reason of his connections in UNP, her father had been rewarded for his party loyalty by gaining permission to set up a restaurant and beer shop in Mahawewa, near Chilaw. She declared that in 2002 her father had been beaten and stabbed at his restaurant and suspected members of an opposing political party, the People’s Alliance Party (PA) to be responsible. The first applicant stated that she had become interested in politics, attended various political meetings and at the age of 17 had campaigned for UNP. She stated also that when the PA won the 2005 elections she, and her family, had been subjected to a constant stream of abuse, threats and harassment from PA supporters and that this had continued until she left Sri Lanka. She set out in her statement a summary of country information upon which she relied and described her fear of returning to Sri Lanka as being grounded upon her political opinion as a supporter of UNP. She claimed that this fear would be made worse following the arrival of her twin children, as she would be unable to rely upon the police for support. The first applicant also claimed to fear persecution as a failed asylum-seeker.

16    The primary judge then summarised at [8] of his reasons the grounds on which the second applicant had sought a protection visa –

The second applicant claimed that his father was a Tamil and his mother Sinhalese, and that he had been imputed with the political opinion of being in favour of the Liberation Tigers of Tamil Eelam (LTTE). He outlined the difficulties he faced by reason of being half Tamil, but stated that his life had been generally peaceful in the period 2001 – 2005. The second applicant detailed the escalating violence in Sri Lanka from 2005 to 2009 and described how he would often be a target for interrogation at check points. Such was the second applicant’s fear for his safety that he said he left Sri Lanka in March 2007. He said that he returned after the cessation of the war in May 2009 and was then married in Sri Lanka before returning to Australia. In particular, the second applicant stated:

That in May 2009, the civil war ended and peace was declared and I took that opportunity to return to Sri Lanka and get married and after getting married my wife and I came straight back to Australia where we have resided and I have not returned to Sri Lanka since that time. I say that even though the civil war ended in 2009, there is still persecution suffered by Tamils in Sri Lanka and I will be subject to this persecution and this is made worse by the fact that I will be a returning asylum seeker.

17    At [17] of the primary judge’s reasons, his Honour referred to the material elements of the Tribunal’s decision –

In reaching its decision, the Tribunal: (a) set out the relevant law: Reasons, [5]-[20]; (b) summarised the applicants’ claims and reproduced their statements: Reasons, [21]-[29]; (c) considered and rejected the first applicant’s claim that she faced a real chance of serious harm or a real risk of significant harm by reason of her past activities or profile and expressed serious doubts about the credibility of some claims and found others to be implausible : Reasons, [30]-[56]; (d) considered the second applicant’s claims concluding that he identified as being Sinhalese and did not face a real chance of serious harm or a real risk of significant harm by reason of his ethnicity or perceived political opinions, noting inconsistencies in his evidence and claims: Reasons, [56]-[75]; (e) considered country information, including that which had been provided by the applicants and found that it did not support a claim that all Tamils would face a real chance of serious harm by reason of their ethnicity: Reasons, [76]-[78]; (f) invited and rejected further claims made by the applicants as to why they thought that they faced a real risk of harm: Reasons, [79]; (g) considered the applicants’ respective claims to fear of harm due to being perceived as failed asylum seekers and concluded that they did not fall within the category of persons who may be of interest to authorities upon their return to Sri Lanka, particularly in circumstances where they had left their country legally, and otherwise had no outstanding criminal record: Reasons, [80]; (h) concluded that the applicants did not face a real chance or a real risk of serious harm on their return to Sri Lanka: Reasons, [81]-[82].

18    The grounds on which the applicants sought judicial review of the Tribunal’s decision by the Federal Circuit Court were as follows –

The decision of the Administrative Appeals Tribunal is affected by jurisdictional error.

Particulars

(a)    The Tribunal has failed to consider each integer of the applicant’s husband’s claim and/or failed to take into account the whole of the evidence in determining whether the feared persecution claimed amounted to persecution and serious harm as per section 91R of the Migration Act.

(b)    The Tribunal has not properly considered the alternative criterion in s.36(2)(aa), that is, whether there are substantial ground (sic) for believing that as a foreseeable consequence of the applicants being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm, especially the investigation upon return to Sri Lanka.

19    The primary judge considered that the applicants’ grounds were expressed at a level of generality that made it difficult for the Court to understand exactly what aspects of the Tribunal’s decision were impugned. The difficulties facing the primary judge were compounded by the fact that the applicants had not made any written submissions explaining the grounds of their application, notwithstanding that they had the opportunity to do so. Nonetheless, in this state of affairs, in addition to considering the two particulars of the applicants’ ground of review, the primary judge examined for himself the Tribunal’s reasons and the materials in the court book.

20    As to the two particulars, the primary judge considered them in turn. As to particular (a), the primary judge referred to material parts of the Tribunal’s reasons, and concluded that the Tribunal had considered comprehensively the claims of the second applicant and the integers of those claims as had been articulated in his statement, his evidence at the hearing before the Tribunal and responses that had been provided to the Tribunal on 17 August 2016 in response to an invitation by the Tribunal under s 424A of the Migration Act 1958 (Cth). His Honour stated that he had also considered particular (a) as though it had been advanced as a complaint by each of the applicants. His Honour concluded at [59] that the Tribunal had undertaken a detailed assessment of the applicants’ claims, and that it had analysed the circumstances of each of the first and second applicant and that the Tribunal’s reasons were comprehensive in that regard. The primary judge also noted the inconsistencies in the evidence of each of the first and second applicants that had supported findings by the Tribunal that were adverse to the applicants. His Honour stated at [62] that no basis could be discerned from the Tribunal’s reasons to support a conclusion that the Tribunal had failed to consider each integer of their claims, and nor was there any support to be found in the reasons of the Tribunal for the contention that the Tribunal had failed to take into account the whole of the evidence in determining whether the feared persecution claimed by the applicants amounted to persecution and serious harm. The primary judge concluded that the first ground did not have a reasonable chance of success.

21    As to particular (b), the primary judge concluded that the Tribunal had assessed the claims of the first and second applicants by reference to the complementary protection criteria. The primary judge noted that the Tribunal had specifically addressed the question of complementary protection by reference to the claims to fear of harm as failed asylum seekers. His Honour concluded that there was no substance to the second ground.

The grounds for the application for leave to appeal

22    The applicants’ grounds for their application to this Court for leave to appeal the primary judge’s decision are as follows –

1.    The decision of the Federal Circuit Court is affected by jurisdictional error in that when considering the question of whether the Applicants have an arguable case to answer, the Court has erred in its conclusion that there is no reasonable chance of success and the application for reinstatement should be dismissed.

Particulars

a.    In considering whether there is a real risk of the applicant experiencing treatment involving “significant harm” for the purposes of s 36(2)(aa), the Court should have concluded that the tribunal consider the second applicant would be travelling on a temporary travel document and also country information which states that a number of cruel and inhumane acts can occur even for a brief period in remand. Also, it should have considered what if he could not be brought before a magistrate and what if he was not granted bail or able to get a surety or what if there were concerns about his identity and would that have led to cruel treatment, punishment or degrading treatment.

b.    Proper consideration was not given to the so called changes that have occurred in Sri Lanka since the war ended in 2009 and how they would affect the second applicant.

23    As expressed, the particulars of the applicants’ proposed grounds of appeal concern only the second applicant, and not the first applicant.

24    The applicants did not file a proposed notice of appeal, but I shall treat the grounds of the application as stating the proposed grounds of appeal. The applicants filed a written statement of contentions of fact and law dated 30 November 2018 which repeated the substance of the terms of their grounds as set out in the application for leave to appeal. The grounds were not further developed. At the hearing of the application both the first and the second applicants addressed the Court briefly with the assistance of an interpreter, but did not develop their proposed grounds of appeal.

Pro bono assistance

25    Having regard to the circumstances of the applicants, including the position of their two children, the Court sought the assistance of pro bono counsel to act as amici curiae. Ms Meredith Schilling and Mr Ben Petrie of the Victorian Bar provided assistance to the Court, on a pro bono basis, to seek to identify whether there was any potential ground of appeal available to the applicants that might enjoy reasonable prospects of success. The Court had the benefit of considered written and oral submissions by counsel acting as amici curiae. The submissions of counsel were clear and direct. The Court was most assisted by Ms Schilling and Mr Petrie, and acknowledges the considerable amount of work that they undertook and the quality of the submissions that they presented.

Consideration

26    Any appeal to this Court from the interlocutory orders of the primary judge refusing to reinstate the applicants’ proceeding in the Federal Circuit Court is an appeal by way of rehearing. The powers of the Court on any such appeal are exercisable where the appellant demonstrates some legal, factual, or discretionary error: Allesch v Maunz (2000) 203 CLR 172 at [23]. In this case, the decision of the primary judge was discretionary, which attracts the well-known statement of principle in House v The King (1936) 55 CLR 499 at 505. In any appeal in this case, that statement of principle would invite attention principally to whether there was a reasonably arguable basis upon which the Tribunal had fallen into jurisdictional error which, within the boundaries of the grounds of review advanced by the applicants before the Federal Circuit Court, the primary judge had overlooked.

27    In determining whether leave to appeal the primary judge’s orders should be given, I shall consider whether the primary judge’s decision is attended by sufficient doubt to warrant reconsideration on appeal. It was not submitted by the Minister that, assuming the decision of the primary judge to be wrong, substantial injustice would not be caused to the applicants if leave to appeal were not granted.

28    The proposed grounds of appeal before this Court do not reflect the grounds that were advanced by the applicants before the primary judge. It is the practice of this Court that leave is necessary to advance on appeal an argument that was not advanced at first instance: VUAX v Minister for Immigration & Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [48] (Kiefel, Weinberg and Stone JJ). Leave to rely upon a new argument will be granted if it is expedient in the interests of justice to do so. In this case, I consider that the merits of any new argument to be the leading consideration in determining whether it is expedient in the interests of justice to allow the argument to be advanced if leave to appeal were given. There is therefore overlap between the considerations necessary to determine the question whether leave to appeal should be given from the primary judge’s interlocutory orders, and the question whether leave would likely be given to the applicants to raise new arguments on any appeal. Both questions invite consideration of the merits of the grounds that are now advanced.

29    In relation to the particular (a) of the proposed grounds of appeal, I am not satisfied that it has any merit. In terms, it directs attention to considerations that might be relevant to the complementary protection criteria in s 36(aa) of the Migration Act, and to potential harm to which the second applicant might be exposed upon his return to Sri Lanka. The Tribunal addressed this topic at [80] of its reasons. The Tribunal did not accept that the applicants would face a real chance of serious harm or a real risk of significant harm on their return to Sri Lanka as failed asylum seekers. In reaching this conclusion, the Tribunal noted that both applicants had departed Sri Lanka legally. The Tribunal did not accept that it would be assumed that the applicants had unsuccessfully sought protection in Australia. Further, the Tribunal found that the second applicant had returned to Sri Lanka twice, and had not claimed to experience any problems from the authorities as a returnee from a western country on either of those occasions.

30    Relevant to both paragraphs of the applicants’ particulars of their proposed grounds of appeal to this Court, the Tribunal addressed at [70] and [76] of its reasons changes that had occurred in Sri Lanka after the war ended in 2009. At [76] the Tribunal referred to and relied on country information that suggested that the security and humanitarian situation in Sri Lanka had improved greatly since the end of the conflict in May 2009.

31    Further, I consider particular (b) of the proposed grounds of appeal to be vague and high-level. There is no identification of what is said to have comprised the lack of “proper consideration … to the so called changes that have occurred in Sri Lanka since the war ended in 2009 and how they would affect the second applicant”. In my view, the second particular of the proposed grounds of appeal does not disclose any reasonably arguable error in the decision of the primary judge.

32    Counsel acting as amici curiae submitted that they had examined the Tribunal’s reasons in considerable detail over a number of days to discern whether there were any grounds of appeal reasonably open to the applicants. In particular, counsel examined the Tribunal’s factual findings which involved rejecting claims that were made by the applicants against the principles essayed in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, which concern the circumstances in which credibility findings might be attended by jurisdictional error. Counsel informed the Court that they had looked at whether the Tribunal had adequately explained its rejection of the applicants’ claims, whether claims had been rejected on a minor or trivial basis, and whether the findings of the Tribunal were legally unreasonable. Counsel submitted to the Court that they were unable to identify any reasonably arguable ground of appeal.

Conclusion

33    The application for leave to appeal the decision of the Federal Circuit Court will be dismissed because I am not persuaded that the decision of the primary judge is attended by sufficient doubt to warrant a grant of leave to appeal.

Associate:

Dated:    2 August 2019

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