FEDERAL COURT OF AUSTRALIA

DAS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1398

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court made on 30 January 2019 be set aside.

3.    The appellant’s application for judicial review be remitted to the Federal Circuit Court for re-hearing by another Judge in accordance with law.

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

REASONS FOR JUDGMENT

WHITE J:

1    The appellant is a 24 year old national of Sri Lanka who arrived in Australia by boat on 9 June 2013 as an unauthorised maritime arrival. On 19 July 2016, he was invited to apply for a Safe Haven Enterprise Visa (SHEV) and he did so on 5 October 2016. The appellant’s application for a SHEV was rejected by the Minister’s delegate on 9 February 2018, and that decision was affirmed on review by the Immigration Assessment Authority (the IAA) on 31 May 2018.

2    The appellant’s application for judicial review in the Federal Circuit Court (FCC) was dismissed on 30 January 2019: DAS18 v Minister for Home Affairs & Anor [2019] FCCA 253. The appellant now appeals to this Court.

3    The appellant represented himself in the FCC. The Notice of Appeal to this Court was filed on his behalf by a legal practitioner, but that practitioner ceased to act for the appellant on 7 August 2019, that is, 12 days before the hearing. The appellant represented himself on the appeal.

The application in the FCC

4    The appellant’s application for judicial review in the FCC contained a single unparticularised ground:

The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his (sic) decision.

5    Although the application also indicated that the appellant sought leave to file and serve “an updated application” and a Registrar made orders on 18 July 2018 requiring that any amended application be filed and served by 12 October 2018, he did not do so. Nor did he particularise the error in law attributed (relevantly) to the IAA. However, on 29 January 2019 (the day before the hearing in the FCC), the appellant provided a document entitled “Applicant’s Outline of Submissions”. The appellant told the Court, and I accept, that the outline had been prepared on his behalf by a community refugee organisation. In summary, that outline raised the following matters:

(a)    the IAA member had not considered the fact that he was unwell at the time of his “first interview” by reason of a condition of “post-traumatic stress disorder” and other matters affecting his mental health, with the consequence that he did not have a “meaningful hearing”. In context, the “first interview” appears to be the appellant’s interview by the Minister’s delegate;

(b)    the IAA had failed to consider his “integral claim”, namely, that he was a member of a particular social group, namely, a young male from the northeast of Sri Lanka who was imputed to be a supporter of the Liberation Tiger of Tamil Eelam (LTTE) and therefore likely to be persecuted by authorities in Sri Lanka;

(c)    the IAA had failed to consider that he would be imputed with support of the LTTE by reason of perceived (but not actual) links with the LTTE and, in particular, by being a person with family links to persons who do have a profile of activities in, or support of, the LTTE;

(d)    the IAA member had been biased by reason of having a pre-determined view of the outcome of the review;

(e)    he was a “vulnerable person” but neither the delegate nor the IAA had followed the Departmental policies concerning such persons; and

(f)    the IAA member had been unable to understand properly his claims and evidence “at a level of detail and granularity” so as to the make “the correct and preferable decision” about his credibility and claims.

6    In his ex tempore reasons, the Judge reviewed in some detail the factual basis on which the IAA member had affirmed the delegate’s decision. His Honour referred to each of the matters mentioned in the appellant’s outline of submissions, with the possible exception of the last. The Judge noted that the IAA member had referred to the appellant’s claim that he suffered from mental health issues and said that he (the appellant) had not provided evidence in support. The IAA member had also recorded that the appellant had not informed the Minister’s delegate that he suffered from mental health issues. In addition, the IAA member recorded that the member had listened to a recording of the appellant’s interview by the delegate which the member considered indicated that the appellant had had “sufficient opportunity to present all his claims to the delegate prior to a decision”. The IAA member had not accepted the appellant’s assertion that his capacity to answer the delegate’s questions had been hindered.

7    The Judge considered that the IAA member had considered in some detail the appellant’s “integral claim” and his claim that he would be imputed with a political opinion. In addition, the Judge noted that the IAA member had referred to the report of the United Nations High Commissioner for Refugees (UNHCR) entitled “Eligibility Guidelines for Assessing International Needs of Asylum Seekers from Sri Lanka” of 21 December 2012 (the 2012 UNHCR Report). I note that the IAA member also made frequent reference to the report of the Department of Foreign Affairs and Trade (DFAT) entitled “DFAT Country Information Report – Sri Lanka” dated 24 January 2017 (the 2017 DFAT Report). The Judge was satisfied that the IAA member had considered that the appellant’s circumstances did not bring him within any of the categories referred to in the Reports that may have given rise to a need for protection.

8    The Judge rejected the claim that the IAA member had had a pre-determined view of the outcome of the review. In this respect his Honour noted that the IAA member had made some determinations of fact which were favourable to the appellant.

9    Finally, the FCC Judge rejected the claim that the appellant had not been dealt with fairly by the IAA by reason of being a “vulnerable person”. His Honour said that the appellant had not pointed to material before the IAA indicating that he was a vulnerable person or which should have caused the IAA to deal with the review in some other way. Accordingly, the Judge found that the IAA’s decision was not affected by jurisdictional error and dismissed the application for judicial review.

The appeal to this Court

10    The appellant’s Notice of Appeal contains three grounds:

a)    The court below failed to provide the applicant with a fair hearing;

I.    That the applicant was unrepresented and requested a Tamil Interpreter for the hearing, however there was no interpreter provided on the day of the hearing.

II.    The applicant did not understand the nature of hearing.

b)    The Second Respondent ignored relevant material in a way that affected its exercise of power.

I.    The applicant attempted to inform the applicant’s mental health issues and his inability recall events.

c)    The first respondent failed to take into consideration the complementary protection criterion under the Migration Act.

Ground 1 – a fair hearing in the FCC

11    It is appropriate to commence consideration of this ground of appeal by stating some matters of general principle. It was incumbent on the Judge to ensure that the trial of the appellant’s application for judicial review was fair. That entailed ensuring that the hearing was conducted fairly and in accordance with law and that each party had a reasonable opportunity to be heard.

12    The obligations of a trial judge in relation to hearings involving unrepresented parties have been discussed in numerous authorities, including MacPherson v The Queen [1981] HCA 46, (1981) 147 CLR 512; Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85, (1999) 84 FCR 438; SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146, (2013) 216 FCR 445 and AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68, (2016) 241 FCR 30. Some of the principles stated in these authorities can be summarised as follows:

(i)    judges have an overriding duty to ensure a fair trial for all parties involved in the proceeding and that the trial is conducted in accordance with law;

(ii)    that duty is fundamental to the administration of justice in the individual case and to the maintenance of public confidence in the judicial process more generally;

(iii)    unrepresented litigants should not be disadvantaged by exercising the recognised right of a litigant to be self-represented. The judge is to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the Court, so far as reasonably practicable, for the purpose of ensuring a fair trial;

(iv)    although a trial judge’s duty to assist an unrepresented litigant is cast in active terms, it does not extend to advising the litigant as to how his or her right should be exercised. Nor is the judge required to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant;

(v)    the trial judge is to remain impartial, as the trial must also be fair to the party opposed to the unrepresented litigant; and

(vi)    the content of a trial judge’s obligations with respect to assisting an unrepresented litigant vary according to nature of the case and the circumstances of the litigant. Likewise, the circumstances in which it may be concluded that material unfairness occurred in the course of trial will vary according to the nature of the case, the issues that arise in it, and the circumstances of the litigant.

13    There seem to be three aspects to the appellant’s claim that he did not receive a fair hearing in the FCC: first, that he had been unrepresented; secondly, that he had not, despite his request, had the assistance of an interpreter which (inferentially) had been necessary in order that he could make himself understood; and, thirdly, that he had not understood the nature of the hearing.

14    As already noted, it is the fact that the appellant was unrepresented at the hearing in the FCC on 30 January 2019. It is also the fact that the appellant did not have the assistance of an interpreter at the hearing in the FCC.

15    The appellant has not presented any positive evidence to support his contention that he had been denied the assistance of a Tamil interpreter despite having requested that assistance. However, he did assert from the Bar table that he had twice made such a request immediately before the hearing in the FCC. He did not provide evidence on oath to support those assertions.

16    I record, however, that there is some scope for the appellant to have been confused on the topic of requests for an interpreter. His application to the FCC contained a typed “X” against the alternative “Yes” to the question “Does the applicant require an interpreter?”. In addition, the answer “Tamil” was entered against the question which follows, namely, “If Yes, what language”. However, by a handwritten line, the “X” marked against the alternative “Yes” has been struck through and a circle has been drawn around the alternate answer of “No”. The effect appears to have been to change the appellant’s original answer, so as to indicate that he did not require an interpreter. That is the way the Judge understood the position – see [38] of the judgment – and it is understandable that he did so.

17    The transcript of the hearing in the FCC suggests that the appellant has at least some facility in the English language. However, as will become apparent, the amount of transcript from which an inference as to the extent of that facility can be drawn is limited.

18    In his submission to this Court, the appellant agreed that he has sufficient English to deal with matters of “daily routine”, but not to deal with “legal issues”. I add that the appellant made his submissions to this Court with the assistance of an interpreter.

19    Counsel for the Minister drew this Court’s attention to some documents which he submitted indicate that the appellant has greater facility with English than he had acknowledged.

20    These were the appellant’s statutory declaration made on 15 November 2017 in support of his application for a Protection visa, an email to the IAA of 21 March 2018, and the appellant’s affidavit made in support of his application for judicial review. I agree with counsel that, on their face, these documents do suggest that he has a good grasp of English, and that neither the statutory declaration nor the affidavit show that the appellant’s declaration and affirmation was taken through an interpreter. In addition, the appellant’s outline of submissions, taken at face value, suggests that he has a good grasp of English.

21    However, I do not think that the Court should base a finding on this material, at least without further evidence. That is because the documents have indications of having been professionally prepared, and the appellant said that he received assistance from a refugee service at an Indooroopilly Church community. Again, for reasons to which I will come to shortly, it is not necessary to express a final view about it.

22    The appellant’s claim that he had not understood the nature of the proceedings is, on one view, inconsistent with the content of the outline of submissions which he provided to the FCC on 29 January 2019. That document refers to the appellant’s application as being one for “judicial review” and uses terminology appropriate for such an application. By way of example, the document contended that the IAA had failed to consider the appellant’s “integral claim”; it claimed that the appellant had not been given the opportunity to explain his profile to the IAA; it claimed that the appellant had a well-founded fear of persecution; it asserted that the appellant’s circumstances had addressed “the eligibility criteria”; it referred to the principle that a decision-maker should act impartially without pre-judgment and contended that the IAA had had “a pre-determined view of the outcome of the review” and had taken irrelevant matters into consideration in making its decision; the document referred to the Departmental and IAA guidelines concerning vulnerable persons (having asserted that the appellant was such a person) and contended that account had not been taken of those guidelines; it contended that the appellant had been denied the “meaningful hearing” to which he was entitled under s 425 of the Act; it asserted that the IAA had “constructively failed to exercise its jurisdiction”; and it sought an order that the IAA’s decision “be quashed and the matter remitted for redetermination according to law”.

23    However, it may readily be inferred that the appellant, who does not have legal qualifications, had received some professional assistance in the preparation of that outline. The appellant confirmed that the outline had been prepared for him by the refugee service at the Indooroopilly Church community. It is common for unrepresented litigants in the appellant’s position to present a document prepared on their behalf by others and it is also common for the unrepresented litigant to demonstrate a personal lack of understanding of the professionally prepared documents which they present.

24    It is not difficult to conclude, and I do conclude, that the appellant’s understanding of the nature of the proceeding in the FCC was limited.

25    There are other concerns about the fairness of the hearing afforded to the appellant by the Judge. The transcript of the hearing reveals the following.

26    The hearing commenced with the Judge providing the appellant with a generalised description of the difference between an appeal and judicial review, referring to the ground stated in the appellant’s application to the FCC, and, referring to orders made by a Registrar with respect to the filing of an amended application. The transcript then records the following:

HH:    And then just yesterday you put in your submissions, okay, which are really saying that the IAA should have done a lot of things, okay? So what else do you want to tell me other than what you’ve put in your affidavit?

DAS18:    I give, like, yesterday your Honour a file like this. So there is – I want to put – add, like, add more things.

HH:        But you put – yes, you put your things in yesterday.

DAS18:    Yes.

HH:        But is there anything more?

DAS18:    … Like, medical condition, so …

HH:        You can’t – you can’t give me anything new, okay?

DAS18:    Yes.

HH:        I have to review …

DAS18:    Yes.

HH:    … What the IAA did. You see, if you start giving me medical certificates or things like that, then I’m not reviewing what the IAA did; I’m looking at things that are different to what the IAA. That’s why I said to you this isn’t an appeal; it’s a review. You’re finished. Your appeals are done. You can only ask for reviews from here on in, okay? Now, if you – if there were things that you should’ve put before the IAA that you didn’t, well that’s too bad now. That ship has sailed, okay? So you can only give me, you know, the things that were before the IAA, okay? So if you’ve got a medical certificate there or something like that, well, you should’ve had that before the IAA. You should’ve had that before the delegate. But you can’t – you know, you can’t do these things now. It’s too late, alright? So what else do you want to say to me?

DAS18:    And in my country, in my place, there is … like, I already – when I was – like, going back, I have a problem, because they’re looking – look at me like I am a LTTE … my place. There is every person, like, normal person, but the army is looking like they are LTTE, always. So, but the IAA never take that point.        (Emphasis added)

27    The Judge then interrupted the appellant to point out that the IAA had addressed that contention. The transcript continues:

HH:    They have actually looked at it, okay? So what else did you want to say to me about that? Is there anything more, other than what you put in your submission?

DAS18:    No.

28    The Judge then heard brief submissions from counsel for the Minister. At the conclusion of those submissions, the following exchange occurred between the Judge and the appellant:

HH:    Is there anything you want to say to me, Mr DAS118? No? Okay. Alright?

The Judge then proceeded to deliver his ex tempore judgment.

29    There are a number of points to be made about the way in which the Judge conducted the proceedings.

30    First, it is unclear why the Judge referred to the appellant’s affidavit, presumably the affidavit the appellant had filed with his application for review. That was of a formal kind and served only to provide the FCC with the IAA’s reasons. Perhaps it was a mistake and the Judge intended to refer to the outline of submissions.

31    Secondly, the appellant expressly told the FCC Judge that he wished to add “more things” to his submissions but the Judge intervened and, effectively, stopped the appellant. He told the appellant that he had “put [his] things in yesterday” and that he could not give the Judge “anything new”. It is not clear why the fact that the appellant had put in an outline on the preceding day should have been regarded by the Judge as precluding him from making any further submissions.

32    Thirdly, the Judge appears to have proceeded on a belief that it was not open to the appellant to provide new material on the hearing of his application for judicial review. Such a belief involved misconception if the Judge thought the nature of the proceedings meant that the appellant could not provide “new” material. The Judge was conducting a first instance trial of an application for judicial review. It was accordingly open to him to receive evidence relevant to, and probative of, the appellant’s claims in the judicial review: SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 at [27].

33    It is understandable that the Judge was not willing to receive “new” material bearing on the merit or otherwise of the IAA’s conclusions concerning the appellant’s claim for protection as material of that kind is not generally admissible: MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8]. That is because proceedings for judicial review are not, at least generally, occasions for merits review. But even for that purpose, there are limited circumstances in which the evidence may be relevant and admissible.

34    Perhaps the Judge intended to say only that the appellant could not adduce new material with a view to persuading him that the IAA should have come to a different conclusion, or that the IAA had been confined to carrying out the review on the material provided by the Secretary under ss 473DC-473DF of the Act, and that it was not for the Judge to consider further material bearing on the merit of the IAA’s decision.

35    But, unfortunately, the Judge expressed himself much more broadly. It is the effect of what he conveyed to the appellant, reasonably understood, which is the important matter. In my opinion, the statements of the Judge, reasonably understood, conveyed to the appellant that it was not possible for the Judge to receive any new material at all. That was an error. The appellant was effectively, if unintentionally, misled.

36    Counsel for the Minister sought to avoid this conclusion.

37    First, counsel drew attention to the later occasions in which the Judge had asked the appellant whether he had anything further to say. It is true that the Judge did ask questions to that effect, but they were coloured by what had preceded them, namely, that the appellant could not add to the matters mentioned in the affidavit (more probably the outline) and could not give the Judge anything which had not been before the IAA. They cannot reasonably be understood as invitations at large to the appellant or as counter-acting what had been said earlier.

38    Secondly, counsel submitted that the Judge’s statement conveyed, and had been understood by the appellant to convey, only that he could not provide any new material in relation to his medical condition. Counsel sought to support this submission by reference to the brief statement from the appellant in the passage quoted earlier concerning his medical condition and a paragraph in the appellant’s written outline referring to medical conditions.

39    I am not willing to accept that submission. The appellant was not given the opportunity to identify the material which he wished to adduce. That material had not otherwise been identified to the Judge. His Honour did not even ask the appellant to identify the material or to explain its intended use. The single reference to a “medical condition” when the appellant had said that there were “more things” (in the plural) which he wished to add is too flimsy a basis on which to conclude that the Judge’s question was directed to, and understood by the appellant to be directed to, his medical condition only.

40    In my view, the Judge’s interventions did deprive the appellant of a fair hearing in the FCC. That may have been unintended but it was nevertheless the effect. The appellant did not have the hearing in the FCC to which he was entitled at law and was denied the possibility of a successful outcome: Stead v State Government Insurance Commission [1986] HCA 54, (1986) 161 CLR 141 at 145-6. The materiality of the Judge’s intervention is evident in part by the shortness of the hearing. The transcript shows that it commenced at 2.26 pm and concluded at 3.07 pm. That is, the whole hearing occupied 41 minutes. That included the time for the delivery of the ex tempore judgment by the Judge which, now transcribed, comprises 52 paragraphs and some eight pages. The appellant’s recorded submissions (which were mostly mono-syllabic) comprised only 11 of the 94 lines of transcript and suggest that the Judge’s statements had a material effect on the appellant.

41    In my view, it is not appropriate in the particular circumstances of this case for the Court to require the appellant to produce all the evidence which he would have sought to place before the FCC and to make all the submissions which he would have made, if given the opportunity, and then to determine whether the result may have been different. Such an approach would be to deny the appellant a first instance hearing in the Court intended for that purpose: SZKLO v Minister for Immigration & Border Protection [2008] FCA 735 at [38]-[43]; AAM15 v Minister for Immigration and Border Protection [2015] FCA 804 at [14]; COZ16 v Minister for Immigration & Border Protection [2018] FCA 46 at [61]; AXL16 v Minister for Immigration & Border Protection [2018] FCA 208 at [26]; BZD17 v Minister for Immigration & Border Protection [2018] FCAFC 94, (2018) 263 FCR 292 at [29]-[32]. It is sufficient to note that the Judge’s interventions appear to have had the effect of stifling the appellant from making submissions.

Ground 2 – appellant’s mental health issue

42    By Ground 2, the appellant contends that the IAA member had ignored relevant material in a way affecting the IAA’s exercise of power. The particular to Ground 2 suggests that the appellant had attempted to inform the IAA member of his mental health issues and his inability to recall events.

43    This is a new complaint because it did not form part of the matters on which the appellant relied in the FCC. Although the appellant contended in his outline of submissions that he had been unwell during the “first interview” and that his medical condition was not considered fully by the Minister’s delegate or by the IAA member, he continued by saying:

I only found out (sic) this out after the IAA decision, when I sought some counselling. Hence, I submit that my ability to address my claim was affected by my mental health, which the delegate or the IAA did not take into consideration.

(Emphasis added)

44    The appellant’s present contention that he attempted to inform the IAA member of his mental health issues is inconsistent with that submission.

45    As noted earlier, the IAA member did advert to a possible issue concerning the appellant’s mental health. The IAA member said:

[7]    The applicant’s email to the IAA also refers to a doctor’s certificate which he says confirms he has mental health related issues following trauma and torture he suffered which have impacted on his ability to answer questions in his SHEV interview. No such document was provided. The applicant did not advise the delegate that he had any mental health issues, and having listened to the SHEV interview it is apparent that the applicant had sufficient opportunity to present all his claims to the delegate prior to a decision, and I do not accept the assertion that his capacity to answer the delegate’s questions was hindered as claimed.

46    The appellant has not provided any evidence to indicate that the IAA proceeded on a misapprehension.

47    Later, at [23], the IAA said:

[23]    The applicant’s SHEV application indicates that he suffered a range conditions relating from the SLA issues including panic attacks, insomnia, nightmares and loss of appetite. The applicant has presented no supporting evidence that he was suffering health issues. The applicant did not raise this claim when he arrived in Australia, nor did he mention it during the SHEV interview with the delegate. I have found that the applicant’s claims regarding the degree to which he was questioned, the surveillance, the SLA attending his home and the threats to his parents are not credible. On this basis, I do not consider that the applicant suffered the mental conditions, if at all, for the reasons he has claimed.

48    The appellant has not shown a basis on which these conclusions may be affected by jurisdictional error.

49    For these reasons, Ground 2 fails.

Ground 3 – complementary protection

50    By Ground 3, the appellant contends that the Minister (in effect the Minister’s delegate) failed to take into consideration the complementary protection criterion under the Migration Act 1958 (Cth) (the Act).

51    Such a failure, if it existed, could not be a ground of judicial review as the Judge was reviewing the decision of the IAA member and not that of the Minister’s delegate. However, putting that consideration to one side and treating Ground 3 as though it imputed error to the IAA member, it cannot succeed. The IAA member referred expressly to the appellant’s claim for complementary protection and to the definition of “significant harm” in s 36(2A) of the Act. The member referred to the early findings and concluded that the appellant was not at risk of suffering significant harm if returned to Sri Lanka. The member found accordingly that the appellant did not come within the s 36(2)(aa) of the Act.

52    Accordingly, Ground 3 fails.

Conclusion

53    For the reasons given above, the appellant has shown error by the Judge. The error is not entirely encompassed by his grounds of appeal but may be regarded as within Ground 1, namely, that the complaint that the appellant did not receive a fair hearing in the FCC.

54    I conclude that the appeal should be allowed, the orders of the Judge set aside, and the application for judicial review remitted to the FCC for re-hearing by another judge.

55    I will hear the parties as to costs and any other matter.

Associate:

Dated:    2 September 2019