FEDERAL COURT OF AUSTRALIA

DHL16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 245

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of and incidental to the appeal, fixed in the lump sum of $3,600.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The four appellants are citizens of Sri Lanka. The first appellant is the husband of the second appellant and the father of the third and fourth appellants. The first appellant came to Australia in July 2006 as the holder of a student visa. The second, third and fourth appellants joined him in Australia in October 2006.

2    The appellants appeal a decision of the Federal Circuit Court of Australia (Circuit Court) dismissing the appellants’ application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant each of the appellants a protection visa.

3    The appellants contend, broadly, that the Tribunal erred by failing to provide them with procedural fairness, or otherwise consider the health circumstances of the first and second appellants in reaching its decision. The appellants also contend that the Circuit Court erred in refusing the appellants’ application for an adjournment of the judicial review application in that Court.

4    For the reasons expressed below, my view is that the Tribunal adequately considered the health circumstances of the first and second appellants in assessing the appellants’ claims, and did not commit any jurisdictional error as alleged by the appellants. Moreover, in the circumstances of the present case, there was no error in the determination by the Circuit Court to refuse the appellants’ adjournment application.

5    The appellants’ appeal to this Court is accordingly dismissed.

Background

6    The background to the appellants’ visa applications was summarised as follows in the reasons of the Circuit Court (DHL16 & Ors v Minister for Immigration & Anor [2019] FCCA 2403 (FCCA Reasons)):

[10]     The first applicant is the husband of the second applicant and the father of the third and fourth applicants. The first applicant came to Australia on 20 July 2006 as the holder of a student visa. The second, third and fourth applicants joined the first applicant in Australia in October 2006.

[11]     The first applicant subsequently applied for another student visa. However, that was refused. The applicant applied for review by the Migration Review Tribunal which affirmed the visa refusal. The first applicant then sought judicial review. However, he later withdrew from those proceedings.

[12]     The first applicant then applied for the protection visa which is the subject of the current application. That application was filed on 28 June 2013. The second, third and fourth applicants were included in the application as members of the family unit, but had no claims of their own.

[13]     In his protection visa application, the first applicant claimed to fear harm because he supported the JVP Party. He said that he had been targeted by government agents and they had damaged his house and threatened to beat his wife.

[14]     On 7 October 2013, the applicants provided additional information to the delegate. On 8 May 2014, the delegate refused the visas.

[15]     The applicants then sought review by the Refugee Review Tribunal. The applicants provided a further written statement to the Tribunal, which included some new claims. The Tribunal affirmed the delegate’s decision on 31 October 2014.

[16]     The applicants then sought judicial review in this court. The matter was remitted to the Tribunal by consent on 30 November 2015. The first and second applicants provided statutory declarations to the Tribunal on 6 April 2016. The first, second and fourth applicants attended a Tribunal hearing on 20 April 2016 and gave evidence to the Tribunal.

[17]     The Tribunal considered that there were substantial credibility issues, given the changes in the applicants’ accounts over a period of time. The Tribunal considered whether the passage of time and the applicants’ medical and psychological conditions may have affected their ability to provide a consistent account of their experiences. However, the Tribunal did not accept that those conditions or the passage of time or nerves explained the various inconsistencies which the Tribunal identified. The Tribunal did not accept that the first and second applicants were witnesses of truth and rejected their claims. The Tribunal did not accept that the applicants would face serious or significant harm if they were to return to Sri Lanka.

Key aspects of the Tribunal’s reasons

7    The Tribunal provided reasons dated 9 October 2016 (AAT Reasons) for its decision to affirm the delegate’s decision. As noted above in the Circuit Court’s summary, the Tribunal’s decision was partly based on adverse credit findings against the first and second appellant. The Tribunal summarised its assessment of the credibility and reliability of their evidence as follows:

[114]    While in isolation the Tribunal would not necessarily draw adverse credibility findings based only on one of the concerns raised, the Tribunal considers the number and nature of the concerns are significant. As raised with the applicants during the hearing, the address information provided in the visa application forms, and the country information before the Tribunal, did not support their claims; new claims were added over time through different written statements, some claims being added over one year after the application was made; the chronology of events and incidents changed and a number of omissions were made between statements and oral evidence. The Tribunal considers these issues reflect poorly on the first and second named applicants’ credibility and reliability of their evidence.

[115]    While the Tribunal has considered the first and second named applicants’ explanation for why they did not make the protection visa application until 2013, nearly seven years after arriving in Australia, the Tribunal would expect applicants in the same circumstances who were in fear of returning to Sri Lanka to have made an application with less delay. The Tribunal considers the delay in making the application reflects poorly on the first and second named applicants’ credibility and reliability of their evidence.

[116]    The Tribunal finds the first and second named applicants are note [sic] witnesses of truth and the Tribunal is not satisfied they have told the Tribunal the truth in relation to critical aspects of their claims.

8    As discussed further below, one basis on which the appellants challenged the Tribunal’s decision in the Circuit Court, and now challenge that decision in this Court, is that the Tribunal allegedly failed to consider the health conditions faced by the first and second appellants at the hearing before the Tribunal. The AAT Reasons contain various references to the medical conditions of the first and second appellants, which are extracted below for reference:

FINDINGS AND REASONS

Credibility

…

[57]     During the hearing the applicant told the Tribunal he had a mental condition, and on questioning the applicant told the Tribunal he had a problem with his memory stating even when his wife asked him something he cannot answer straight away. When asked if he had seen a doctor about this the applicant told the Tribunal he had seen a counsellor about 10 times. When asked if he had been diagnosed with any medical conditions the applicant told the Tribunal he had not been diagnosed with anything and the sessions with the counsellor were advice about how to get over the situation. When asked if the applicant took any medication he told the Tribunal he took Panadol for headaches. He told the Tribunal he had experienced this problem of not being able to answer straight away for about five years. If he tries to memorize anything he gets a headache. The applicant showed the Tribunal an appointment booklet recording monthly appointments with a counsellor. While the Tribunal accepts the applicant sees a counsellor and takes Panadol for headaches, and it accepts that the passage of time and nerves at giving evidence at a hearing can affect a person's ability to recall detail, the Tribunal does not accept these circumstances explain the concerns raised below. The Tribunal does not accept the applicant's memory is impaired or is not functioning in a way that would explain the concerns discussed below.

[58]     During the hearing the second named applicant told the Tribunal she suffers from high blood pressure and takes medication for that. On questioning the second named applicant told the Tribunal she does not have any other medical conditions and does not take any other medications. She later told the Tribunal she sees her doctor regularly who tells her she is thinking too much about all the problems and has advised her to be patient and be calm and not to think too much about these things. The Tribunal has taken this information into consideration when assessing the credibility of the second named applicant.

[59]     There is no evidence before the Tribunal to suggest the applicants were unable to meaningfully participate in the hearing due to medical issues.

…

[96]     During the hearing the Tribunal raised its concerns that the second named applicant failed to mention the incident where the applicant was attacked on his motorbike and injured and went to hospital where he received stitches. In response the second named applicant told the Tribunal she remembers the incident very well but may have failed to mention it due to her mental condition and bad memory. On questioning the second named applicant told the Tribunal that she gets frequent headaches and sometimes loses memory. On further questioning the second named applicant told the Tribunal she sees a doctor, and when asked if she had been diagnosed with a medical condition and/or prescribed medication or treatment the second named applicant told the Tribunal her doctor has said she is thinking too much about all the problems and has advised her to be patient and be calm and not to think too much about these things. She told the Tribunal she sees her doctor once a month and discuss her issues and she is advised to think lightly and forget about the past.

…

[102]     While the Tribunal accepts the second named applicant has high blood pressure and takes medication for that, and it accepts the passage of time and nerves at giving evidence at a hearing can affect a person's ability to recall detail, the Tribunal does not accept these circumstances explain the concerns raised above. Nor does the Tribunal accept the second named applicant's memory is impaired or is not functioning in a way that would explain the differences noted above.

…

[113]    As noted above the Tribunal has taken into consideration the information provided by the applicants about their medical conditions, and the Tribunal accept the applicant sees a counsellor on a monthly basis and takes Panadol for headaches and that the second named applicant has high blood pressure and sees her doctor regularly. The Tribunal has also taken into consideration that 10 years has elapsed since many of the events referred to above occurred and the Tribunal accepts the ability to recall detail can be affected by the passage of time as well as by nerves about giving evidence at a hearing. Nevertheless, the Tribunal is not satisfied these circumstances explain or resolve the concerns raised above. Given the significance of the events to the applicants, the Tribunal would expect them to be able to provide a generally consistent account or one without the number of discrepancies noted above.

Federal Circuit Court’s decision

9    The appellants sought judicial review of the Tribunal’s decision in the Circuit Court. A notice of listing dated 10 August 2017 advised the appellants’ application was listed for hearing on 6 August 2019.

Adjournment application

10    On 6 August 2019, the day that the review was listed for final hearing, the appellants filed an application seeking an adjournment of the hearing. The adjournment application was supported by an affidavit affirmed by the first appellant. That affidavit deposed to the following:

1.     We, as appellants humbly seek a postponement of the hearing to a date convenient to the court.

2.     I as the main appellant sought an adjournment earlier from the court but was advised that this will have to be with the consent of the Minister’s lawyers.

3.     I approached the Minister’s lawyers but they said they will not be consenting to same.

4.     I was able to seek assistance from a solicitor and a barrister who were willing to help us. They said they have to see that a reasonable argument need to be found. We are very aggrieved by the decision and have filed the application on our own. We believe the decision is not right in our circumstances and what is continuing in the country. But we are not able say correctly in legal terms what is the legal error in the decision.

5.     The barrister indicated that with the approach the tribunal has taken, it will be necessary to have a transcript of the proceedings before the tribunal to consider. The question asked and answers given. I asked for time to obtain the transcripts and I needed to obtain some funds to do that. We believe that if this is examined there will be some errors which the tribunal did with the answers we gave.

6.     At the start itself I told the tribunal about the sickness I had related to memory and some lapses last time was also due to this. I told the tribunal that some answers may not be correct or contradictory combined with the long time of most events.

7.     The Tribunal asked whether I had medical evidence to show whether I am unfit to give evidence. I told [the Tribunal] I do not have any doctors certificates but have been regularly going to counselling and showed the appointment cards. The tribunal was not inclined to give some time for me to obtain medical evidence to support my sickness. Similarly is the situation of my wife. The tribunal did not give any time.

8.     Most critical matters on which the tribunal has held that we are unreliable witnesses arise largely out of contradicting answers due to my memory lapse in recollecting events.

9.     Our children know nothing about Sri Lanka and at all times have been here. They have not known anything about that country and their fears in returning to that country has not been adequately examined or considered by the tribunal.

10.     For all these reasons we request that a postponement be granted for us to be adequately represented.

11    The adjournment application was opposed by the Minister. The Circuit Court considered the oral submissions of the appellant before dismissing the application. The FCCA Reasons record the basis for the dismissal as follows:

[5]    In oral submissions, the applicant told the court that he went to Victoria Legal Aid within a month of filing the substantive application on 4 November 2016. He said that after holding the matter for about 11 months, Victoria Legal Aid told him in about November 2017 to seek legal assistance elsewhere. He said that he then tried to search for free legal advice. He said he went to the Asylum Seeker Resource Centre, but they did not help him. He said that two months ago, he saw Ravi James, who said he could file documents free of charge.

[6]     The court telephoned Ravi James. Mr James told the court by telephone that he told the applicant that he could assist him more or less pro bono, subject to advice from counsel. Mr James told the court that he had briefed Anthony Krohn of Counsel, who said that he needed a transcript of the Tribunal hearing to be able to assist the applicant further. Mr James told the court that he thought the transcript would cost between $600 and $800, he thought Mr Krohn’s fee would be between $3,000 and $3,500 and he thought that the transcript would take about three or four weeks to be obtained.

[7]     I asked the first applicant whether he could get or whether he had $4,000. He said that he could get that money, but would need about a year to do so. He said that he had not approached Ravi James earlier, because he did not know how to find him.

[8]    In these circumstances, I do not consider that it is appropriate to grant an adjournment of the final hearing in this matter. There is nothing to indicate that counsel has presently identified a jurisdictional error. The applicant needs a year, on his own estimation, to gather the funds to enable him to get legal representation. The applicant has already had about two-and-a-half years since filing to organise legal representation. While the matter seems to have been in the hands of Victoria Legal Aid for about the first 12 months since filing, the applicant has had at least 18 months to organise legal assistance since Victoria Legal Aid said they could not assist him.

Judicial review application

12    Having refused to grant the appellants’ application for adjournment, the Circuit Court proceeded to hear the appellants’ substantive application for judicial review of the Tribunal’s decision.

13    The application filed by the appellants in the Circuit Court alleged, without further particularisation, that the Tribunal’s decision was: (i) “affected by an error of law”; and (ii) that the appellants were denied procedural fairness. According to the FCCA Reasons, the Circuit Court provided the first appellant (the only appellant to appear before the Circuit Court) with an opportunity to further explain the grounds of review:

[20]     The first applicant told the court that his wife suffered from a mental condition and had memory loss. He said this was mentioned to the Tribunal. He said that he was nervous before the Tribunal and that the trauma he had experienced caused him to struggle with the facts. He said that there was a mix-up between the permanent and temporary addresses that he gave in his protection visa application. Otherwise, the first applicant did not elucidate the grounds of review in the application filed in this court.

14    The Circuit Court (at [21]-[24]) extracted the passages of the Tribunal’s reasons that considered the appellants’ health conditions (as extracted above at [8]). The Circuit Court observed that the Tribunal was well aware of the claims relating to the first and second appellants’ medical and mental conditions, but that the Tribunal rejected those bases as an explanation for the discrepancies in their evidence before the Tribunal: FCCA Reasons at [24].

15    The Circuit Court concluded that these findings by the Tribunal, and its reasons for those findings, were reasonably open to the Tribunal: ibid at [25]. Having regard to these matters, and the AAT Reasons generally, the Circuit Court held that the Tribunal had not committed a jurisdictional error: ibid at [25] and [28].

Appeal to this Court

16    The appellants appealed to this Court on 16 August 2019. The appellants’ notice of appeal specified the following grounds of appeal:

1.    Her Honour, at the Federal Circuit Court, dismissed the Application for an Adjournment, filed on 6 August 2019, and along with that, dismissed the Application for Review filed on 4 November 2016.

2.    The decision by the Administrative Appeals Tribunal (“AAT”) is affected by a judicial error, as the Tribunal did not provide procedural fairness or consider the medical situation faced by us, which played an important part in the decisions of the Tribunal.

3.    Further grounds will be submitted after consideration of the reasons for the dismissal and provided by Her Honour.

17    In relation to the third ground of appeal, it should be noted that, at the time the appellants’ filed their notice of appeal, the Circuit Court had not provided the parties with written reasons for its decision. However, written reasons (as revised from the transcript of the hearing) were provided by the Circuit Court to the parties on 28 August 2019: see footnote 1 of the FCCA Reasons. Despite receiving the FCCA Reasons, the appellants did not submit any further grounds of appeal.

18    The appeal was heard in this Court on 27 February 2020. The Minister was represented by Ms Ward, a solicitor. The first appellant appeared in person with the aid of an interpreter. The second, third and fourth appellants were present in court but did not make a formal appearance. It is convenient to record the manner in which argument was presented by, and on behalf of, the appellants at the hearing.

Appellants’ representation

19    The written submissions filed on behalf of the appellants prior to the hearing were prepared by Mr Melville Miranda, who, according to those submissions, is a “Law Student/Legal Analyst”. At the commencement of the hearing, Mr Miranda produced to the Court a letter dated 24 February 2020 from the first appellant to the Court, which conveyed a request by the first appellant that “any queries about legal issues raised be clarified with [Mr Miranda]”. A copy of this letter had been provided to the Minister’s representatives shortly before the hearing.

20    Mr Miranda confirmed that he was a law student, but not a legal practitioner. Mr Miranda explained that the first appellant could not afford a lawyer, and that the first appellant sought Mr Miranda’s assistance at the hearing. Ms Ward expressed that the Minister did not object to Mr Miranda assisting the first appellant in the presentation of his case so long as Mr Miranda did not deviate from the filed written submissions.

21    Having heard the parties, I determined that Mr Miranda would not be permitted to appear and present argument on behalf of the appellants, but I permitted Mr Miranda to assist the first appellant, where necessary, with the presentation of his case. Accordingly, most of my questions at the hearing were directed to the first appellant, who answered with the assistance of an interpreter. On occasions, I directed questions to Mr Miranda where necessary to clarify the bases on which the appellants challenged the decisions of the Tribunal and the Circuit Court.

Consideration

Federal Circuit Court’s refusal to adjourn hearing

22    The appellants’ notice of appeal does not identify any particular error by the Circuit Court in exercising its discretion to refuse the adjournment application. Having considered the appellants’ written and oral submissions, the best characterisation of this ground of appeal is that the appellants argue that the exercise of the Circuit Court’s discretion to refuse the adjournment was so unreasonable such that it miscarried in law.

23    For the purposes of characterising the Circuit Court’s refusal to adjourn the hearing as unreasonable, the first appellant, and Mr Miranda on his behalf, highlighted that:

(a)    the appellants could not afford legal representation at that time: see FCCA Reasons at [6]-[7]. In this regard, it was submitted that the appellants are migrants and have struggled with financial difficulties;

(b)    Victoria Legal Aid “sat on” his application for over 11 months, and then told the first appellant to seek legal assistance elsewhere: see ibid at [5]; and

(c)    the Asylum Seeker Resource Centre also refused to assist the first appellant: see ibid.

24    Having considered the reasons of the Circuit Court, and the submissions made by, and on behalf of, the appellants, my view is that there was no error in the determination by the Circuit Court to refuse the appellants’ adjournment application. The following considerations are key:

(a)    the Circuit Court was informed that Mr Ravi James, a solicitor, could assist the appellants on a pro bono basis but Mr James required the advice of counsel as to whether there was any basis for alleging jurisdictional error on the part of the Tribunal. Mr James advised that a transcript of the Tribunal hearing would need to be obtained (which would cost between $600 and $800) and counsel’s fees to provide advice would be between $3,000 and $3,500;

(b)    the first applicant asked for an adjournment to the hearing for one year to gather funds to pay for legal representation. One year is a long period of time for an adjournment, particularly given the appellants first applied for the visas in June 2013. The analysis may have been different if the first appellant had requested an adjournment for a shorter period of time to obtain legal assistance;

(c)    significant time had already elapsed since the time of filing of the judicial review application in the Circuit Court in October 2016;

(d)    the appellants had been aware of the hearing date in the Circuit Court (of 6 August 2019) since receiving notice of that date in a notice of listing dated 10 August 2017; and

(e)    the appellant had already been refused legal representation by Victoria Legal Aid.

25    In light of these considerations, I do not accept that the exercise of the Circuit Court’s procedural discretion whether or not to adjourn the hearing miscarried in law. It does not appear that “some error has been made in exercising the discretion”, nor that, in the circumstances of the present case, the result reached was “unreasonable or plainly unjust”: House v The King [1936] HCA 40; 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.

26    For these reasons, the appellants’ challenge to the Circuit Court’s decision to refuse the adjournment must be rejected.

Judicial review of the Tribunal’s decision

27    The second ground of appeal raised in the appellants’ notice of appeal contends that the Tribunal’s decision is “is affected by a judicial error, as the Tribunal did not provide procedural fairness or consider the medical situation faced by us, which played an important part in the decisions of the Tribunal”.

28    At the hearing, the first appellant expressed, broadly, that the Tribunal had failed to take into account the health conditions of the first and second appellant in reaching its decision. According to the first appellant, some of the answers he gave at the Tribunal hearing may have been wrong or mistaken because of his mental condition.

29    I am not persuaded, however, that the Tribunal’s reasons for decision disclose any jurisdictional error in this respect. The AAT Reasons provide a detailed consideration of the evidence before the Tribunal. A reading of those reasons (particularly those paragraphs extracted above at [8]), demonstrates that the Tribunal plainly considered and took into account the first and second appellants’ memory, mental and physical conditions. I do not detect any error in the Tribunal’s approach to these issues.

30    The appellants moreover complain that they were denied procedural fairness by the Tribunal. To the extent that this allegation deviates from their argument regarding the first and second appellants’ health conditions, this allegation is unparticularised, and the failure to particularise a ground of appeal is a basis upon which that ground may be dismissed: see, for example, SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21] per Reeves J.

31    In any event, there is no evident breach of the Tribunal’s obligations under Pt 7, Div 4 of the Migration Act 1959 (Cth) (Act). By letter dated 2 March 2016, sent to the appellants’ email address, the Tribunal invited the appellants to appear before it and a hearing was scheduled on 19 April 2016 in accordance with ss 425 and 425A of the Act. The appellants attended with the assistance of a Sinhalese interpreter. The appellants were aware that the credibility of their claims was the determinative issue on review from the delegate’s decision and the Tribunal’s questioning at the hearing.

32    The Tribunal, in reaching its decision, relied on the appellants’ written evidence provided to the Department, the appellants’ oral evidence provided to the Tribunal and relevant country information, all of which fell within the exceptions to information in s 424A(3)(ba), s 424A(3)(b) and s 424A(3)(a) of the Act respectively.

33    Finally, I do not accept the appellants’ residual complaint, as advanced in their written and oral reasons, that the Tribunal failed to assess their claims for protection under the refugee and complementary protection criteria. The Tribunal clearly considered the appellants’ claims, including those provided in the visa application forms. However, the Tribunal found on the evidence before it, and taking into account the Tribunal’s credibility concerns, that the appellants did not satisfy either the refugee or complementary protection criteria. These findings were open to the Tribunal to make.

34    In particular, Mr Miranda appeared to contend at the hearing in this Court that, because the first appellant subjectively feared persecution if he returned to Sri Lanka, it followed that a well-founded fear of persecution was established in the present case. Mr Miranda cited Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 (Chan) for that proposition. However, in short, what Chan established is that the determination of whether a person has a well-founded fear of persecution involves a mixed subjective and objective test: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ. As Toohey J observed in Chan at 406, “[i]f the test were entirely subjective, the expression “well-founded” would serve no useful purpose”. In the present case, regardless of whether the appellants subjectively held a genuine fear of returning to Sri Lanka, the Tribunal was not satisfied that the appellants possessed a well-founded fear of persecution, or that there was a real risk that they would suffer significant harm if they returned to Sri Lanka.

35    Accordingly, in my view, no jurisdictional error as alleged was committed by the Tribunal.

Conclusion

36    For the above reasons, the appellants’ appeal to this Court will be dismissed. The appellants will pay the Minister’s costs of and incidental to the appeal, fixed in the lump sum of $3,600.

Associate:    

Dated:        3 March 2020

SCHEDULE OF PARTIES