Federal Court of Australia

FOH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1525

ORDERS

THE COURT ORDERS THAT:

1.    The appellant's interlocutory application filed 14 October 2020 is dismissed.

2.    The appeal is dismissed.

3.    The appellant must pay the first respondent's costs of the appeal, fixed at $4,000.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The appellant is a citizen of India. He came to Australia on 22 November 2015 on a visitor's visa. He overstayed that visa, and on 18 April 2018 he was placed in immigration detention. On 27 April 2018 he applied for a protection visa. A delegate of the first respondent (Minister) decided not to grant that visa and the Administrative Appeals Tribunal affirmed that decision. The appellant sought judicial review of the Tribunal's decision in the Federal Circuit Court. On 3 February 2020 that court dismissed the application. The appellant now appeals to this court.

2    The appellant was unrepresented in the Federal Circuit Court and in this court. As will appear below, both his grounds of review and his grounds of appeal were generic in nature and did not identify any specific error on the part of the Tribunal or the primary judge. For the reasons that follow I have concluded that the primary judge did not fall into error, so the appeal must be dismissed.

Adjournment application

3    The appellant had representation until shortly before his hearing in the Tribunal, and has been unrepresented since then. He appeared at the hearing of the appeal with the assistance of a Punjabi interpreter. I also permitted the appellant's cousin to sit with the appellant to provide support at the hearing of the appeal.

4    By an interlocutory application filed on 14 October 2020, the appellant applied for the adjournment of the hearing. The basis of the application was that he needed more time to try to obtain legal representation. The Minister opposed the application. At the hearing I refused the application, for the following reasons.

5    In WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114 at [2] I summarised the principles applicable to such applications as follows:

(1)    Lack of legal representation is not, of itself, a reason to adjourn the hearing of a long-scheduled application or appeal: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19].

(2)    Other than in the case of persons appearing before a court for a serious criminal offence, there is no absolute 'right' to legal representation in this country, in the sense that a judge is required to adjourn the proceeding if the party has no lawyer: EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 at [18]; Jarrett v Westpac Banking Corporation [1999] FCA 425 at [6]; and Pallas v Minister for Home Affairs [2019] FCAFC 149 at [42(a)].

(3)    Nevertheless, the fact that a party wishes to obtain legal representation is a relevant factor in considering the question of whether an adjournment should be granted: BSY16 v Minister for Home Affairs [2019] FCA 140 at [5].

(4)    Matters that will be relevant in determining the weight to be given to that wish may include:

(a)    the amount of time the party has had to obtain legal representation;

(b)    the steps the party has taken to obtain such representation during that time;

(c)    the explanation for any delay in that respect;

(d)    the utility of any adjournment, including the likelihood of the appellant obtaining legal representation; and

(e)    the time required for the appellant to do so,

see BSY16 at [5]; and Pallas at [42].

(5)    In the end, the decision whether to adjourn is a discretionary decision for the court hearing the matter, which must be exercised judicially and will depend on the individual circumstances that are relevant: EPH17 at [18]-[19]; Jarrett at [78].

6    The appellant swore an affidavit dated 13 October 2020 which he filed in support of the adjournment application. It says that he has recently been employed with Menulog. The affidavit also says he has been trying to obtain legal representation on a pro bono or legal aid basis from the Asylum Seeker Resource Centre, Legal Aid and other unspecified organisations. It appeared that he had been told that due to the limited time until the hearing, the organisations could not provide him with a lawyer, because they would not have enough time to prepare.

7    The main submission which the appellant put through his interpreter at the hearing was that he now had a job with Menulog, so he would be able to save the money to pay for a lawyer. This submission was repeated by the appellant's cousin (who was fluent in English and articulate) when I gave him leave to speak briefly on the appellant's behalf, albeit at the end of the hearing after I had refused the adjournment application. The cousin also said other things which can only be characterised as evidence from the bar table and which the court has not taken into account.

8    The appellant's main submission was not entirely consistent with his affidavit in support of the adjournment application. While the affidavit did say that he 'recently got employed with menulog limited financial support' [sic], the rest of it referred to efforts to obtain legal representation on a pro bono or legal aid basis. The affidavit was not about obtaining legal representation on a fee paying basis.

9    It emerged at the hearing that, apart from the mention of Menulog, the text of the affidavit was identical to the text of an affidavit which the appellant filed in the Federal Circuit Court in support of an application for an adjournment in that court. It appears that the application was granted (see primary judgment at [44]) but the appellant had not obtained legal representation by the time of the adjourned hearing in the Federal Circuit Court.

10    So the affidavit filed in this court was largely copied from an earlier affidavit, and it is largely inconsistent with the position the appellant put in this court. This means that, other than to accept the bare fact that the appellant recently obtained employment (if that is the right word to describe the relationship) with Menulog, the court puts no weight on the affidavit.

11    As such, the appellant's position on the adjournment resolves to a submission that he should be given more time to find a lawyer because he is now able to pay the lawyer's fees from his remuneration from Menulog. I will assume, in the appellant's favour, that his recent employment explains why he has not obtained legal representation by the time of the hearing, some 7½ months after the filing of the notice of appeal. But no specifics were given as to how much he is being paid by Menulog or how much a lawyer would charge to take on his case. It is inherently unlikely that he will be earning enough to pay for a lawyer. So it is highly doubtful that if the adjournment application were to be granted, so that the appellant was given more time, that would result in any useful outcome, such as the obtaining of legal representation.

12    The court acknowledges the difficulties faced by a person from another country who has unsuccessfully applied for a protection visa, who does not speak English fluently or at all, has no legal qualifications, and has limited means with which to secure legal representation. However there are many people who find themselves in that situation in this court, and it is necessary to balance their individual interests against the requirement for efficient use, in the administration of justice, of the public resources that the courts represent. An adjournment of the appeal hearing would have resulted in wasted court time and also the need to list the hearing at a later time and potentially cause delay for other litigants. Also, as the end of the year approaches, any adjournment would have likely deferred the appeal hearing for a relatively long time, to at least February 2021.

13    In light of those concerns, and in particular because I was not persuaded that granting an adjournment would have any utility, I refused the application.

The appellant's claims for protection

14    The appellant was born in 1978 so he was 37 years old when he came to Australia. The primary judge summarised his claims to protection, accurately, as follows:

(1)    He is a Sikh and a member of a political party known as Shiromani Akali Dal, or more precisely, he is a member of a faction or splinter party known as Shiromani Akali Dal Amritsar (SAD(A)). He claims that in India members of the party have been persecuted for their religious beliefs and political views.

(2)    The appellant was personally targeted for his membership of SAD(A). He gave one instance of this only, a claimed incident in 2014 or 2015 in which the police visited his home and beat and/or tortured him. The appellant claims that his young son witnessed this incident and came to be diagnosed with depression.

(3)    The appellant therefore fears harm and persecution if he returns to India, including torture, threats of death and injury, death, assault and unlawful detention.

The basis of the decision in the Federal Circuit Court

15    The originating application for judicial review did not contain any grounds, but referred instead to an affidavit in support which the appellant provided. The primary judge treated the affidavit as containing the grounds of review. The appeal seems to rely on all those grounds, so I will set the text of the affidavit out in full (errors and inconsistencies in original affidavit):

1.    That I am the main applicant in this migration litigation.

2.    All the information provided in the forms, affidavits and proceeding is true and valid.

3.    The application should be considered according to the law.

4.    The decision of the AAT made on 5th October 2018 should be quashed.

5.    The respondent in making the decision did not comply with rules of natural justice and I the applicant was denied procedural fairness.

6.    The Second respondent decision included the error of the law.

7.    The Second Respondent took in account irrelevant considerations.

8.    The Second Respondent decision was unreasonable.

9.    The Second Respondent failed to took in account the relevant considerations.

10.    The decision of the respondent failed meets the refugee law when making the decision.

11.    I believe the tribunal made an error in coming to its decision due to my inability to prepare and present a proper case and therefore a meaningful opportunity to be heard by denying me procedural fairness.

12.    The Second respondent also made an error by finding that I do not engage the protections afforded at s.36(2)(a) of the act therefore misapplying and misconstrued the s.36(2) (a) and s.36(2)(aa).

13.    The Second respondent has not considered each of the integers of my claims of the serious harm discussed with respects to my claims for refugees protection in the context of the complementary protection criterion regarding the real of significant harm at s.36(2)(aa).

14.    The Second respondents conclusion in making the decision is vague and is without considering the facts of my country report information.

15.    The acknowledged difficulties of preparing and presenting my case I am from a different social, ethnic and cultural background and the difficulties I have with English language. Moreover, I believe the decision maker misinterpreted their obligations to consider representations I made for mitigate my offending behaviour as non-refoulement obligations.

16    These complaints of error on the part of the Tribunal (which was the second respondent) were generic and unparticularised. The primary judge considered them in turn after grouping them as follows (his Honour referring to each paragraph of the affidavit as a 'ground'):

(1)    Grounds 1-4 were statements of fact or of the relief sought, so no error arose from them.

(2)    Grounds 5 and 11 were complaints of denial of procedural fairness. In respect of ground 5, the primary judge held that the Tribunal had given the appellant a hearing to present evidence and arguments. His Honour held that the issue which was dispositive before the delegate, the credibility of the appellant's claims, was also dispositive in the Tribunal, so there was no error of the kind which was the subject of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. Nothing on the face of the Tribunal's decision indicated that it had denied the appellant procedural fairness. In respect of ground 11, there had been an issue occasioned by the withdrawal of the appellant's representative three days before the Tribunal hearing. But the primary judge did not consider that this led to any procedural unfairness, as it appeared that the representative had withdrawn because of the appellant's failure to meet his terms of engagement and to give instructions, that is, the appellant's own conduct. Also, the appellant made no request for an adjournment, and the Tribunal gave him two more weeks to provide any further material to it. The appellant also submitted to the primary judge that the interpreter he had before the Tribunal had made errors, but there was no support for that in the evidence. The primary judge also considered whether a mental illness of the appellant, namely depression, had interfered with his ability to put his case to the Tribunal. His Honour accepted that the mental illness was real, but there was no evidence indicating that it had interfered with the appellant's ability to put his case. So the primary judge dismissed these procedural fairness grounds.

(3)    Ground 6 alleged error of law but the appellant could not identify any error. This ground was dismissed.

(4)    Ground 7 referred to irrelevant considerations but, again, none were identified. The primary judge's review of the Tribunal's decision did not reveal consideration of any matter that was irrelevant. This ground was dismissed.

(5)    Ground 8, similarly, alleged unreasonableness without identifying any. The primary judge found that the Tribunal's findings were rational and logical, and it could not be said on the evidence that no reasonable decision maker would have reasoned the same way. His Honour dismissed this ground.

(6)    Ground 9 asserted a failure to take relevant considerations into account. Again, no specific considerations were identified by the appellant. The primary judge proceeded on the basis that it was the appellant's claims to protection that were mandatory relevant considerations. His Honour concluded that the Tribunal had engaged with all the appellant's claims. He dismissed this ground.

(7)    The primary judge grouped grounds 10, 12 and 13 together as alleging a misunderstanding of the law as to the criteria for protection under s 36(2)(a) of the Migration Act 1958 (Cth), the refugee criterion, and s 36(2)(aa), the complementary protection criterion. His Honour found no such error in the Tribunal's decision. He considered the Tribunal was correct when it dealt briefly with the complementary protection criterion, effectively by saying that its findings as to why the refugee criterion was not met in the case of the appellant also meant that the complementary protection criterion was not met. These grounds were dismissed.

(8)    The primary judge found, contrary to ground 14, that the Tribunal's decision was not vague and that it had considered the country information, including news articles that the appellant had provided. This ground was dismissed.

(9)    The primary judge found that the second sentence of ground 15 was a formulaic ground with no merit in the circumstances of the appellant's case. As for the first sentence, his Honour found that the appellant's language and cultural difficulties in presenting his case did not deny him an opportunity to prepare and present his case and there was nothing on the face of the Tribunal's reasons to suggest that it was not sensitive to such difficulties. This ground was dismissed.

17    The primary judge dismissed the application for judicial review with costs.

The grounds of appeal

18    The grounds of appeal in this court are as follows:

1.    The learned primary judge erred in [not] finding that the Administrative Appeals Tribunal failed to give proper consideration to certain matters identified in the Protection visa decision as steps in the decision making process.

Particulars

(a)    The learned primary judge did not identify a range of claims (Claims) that the Administrative Appeals Tribunal was required to take into account.

(b)    The learned primary judge should have found that, on evidence, it could be established that the Administrative Appeals Tribunal had failed to give proper consideration to the Claims. Indeed, the learned primary judge should have found that the Administrative Appeals Tribunal had not sufficiently addressed those Claims.

2.    The learned primary judge erred in [not] finding that the Administrative Appeals Tribunal misapplied and misinterpreted s 5H(I), 5J and s36 of the Migration Act 1958 (Cth):

Particulars

(a)    The particulars to Grounds of the application are repeated and relied upon.

3.    The learned primary judge erred in [not] concluding that the Administrative Appeals Tribunal reasoning process was fundamentally flawed by reason of jurisdictional error.

Particulars

   (a)    The grounds of the application.

(b)    Further, the learned primary judge erred in finding that the Administrative Appeal [sic] Tribunal failed to take into account merits of significance.

4.    The learned primary judge's failure to consider the Applicant's proposed grounds constituted jurisdictional error. Jurisdictional error arises in this regard in any of a number of ways:

(a)    when 'a submission of substance' is not evaluated.

(b)    where there is a denial of procedural fairness referable to the second of the two aspects of the hearing rule, which requires both that the affected person have an opportunity to provide submissions and a reflex [sic] entitlement to be heard by the decision maker when the submission is given.

(c)    where there is failure by a Court to exercise jurisdiction; or

(d)    when the decision of the Court fails to expose a path of reasoning.

Consideration of the appeal

19    At the hearing of this appeal I explained to the appellant, through the interpreter, that the function of this court on appeal is to correct any error on the part of the primary judge. In relation to ground of appeal 1, I asked the appellant which particular claims he said that the Tribunal had failed to consider, and how it was that the primary judge had made an error in that regard. He could not identify any such claims.

20    On the face of the materials, the Tribunal did deal with all his claims. It is true that there is a statement in the original application for a protection visa that the appellant had been in hiding by cutting his hair, which is against his religion. The Tribunal did not specifically refer to that. But the Minister submitted, and I accept, that this allegation was subsumed in the Tribunal's findings of greater generality, that it was not satisfied that the appellant was subject to adverse treatment by reason of his membership of SAD(A), or that he faced a real chance of persecution in India for that reason or because of his ostensible adherence to the Sikh religion: see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47]. Another way of putting the point is that the allegation about the appellant hiding and cutting his hair is not a separate claim or integer of a claim which the Tribunal was required to consider specifically, but is merely a statement of one consequence of the alleged religious persecution or persecution by reason of SAD(A) membership, which the Tribunal did address. Ground of appeal 1 is dismissed.

21    In relation to ground of appeal 2, which purports to rely on all the grounds of review in the Federal Circuit Court, it is not the function of this court to hear and determine the judicial review application again in its entirety. I gave the appellant the opportunity to tell me in what way the Tribunal misinterpreted or misapplied s 5H(1), s 5J or s 36 of the Act. He was unable to say. There is no apparent basis to conclude that the primary judge erred in dismissing a similar ground in the Federal Circuit Court. Ground of appeal 2 is dismissed.

22    Similarly, in relation to ground of appeal 3, the appellant was unable to explain what his notice of appeal meant when it referred to the Tribunal having 'failed to take into account merits of significance'. The court can only understand it as another claim that the Tribunal failed to take into account the appellant's claims for protection. For the same reasons as ground 1, ground of appeal 3 is dismissed.

23    Ground 4 should be read as confined by its first sentence, so the general discussion after that of how jurisdictional error can arise does not identify specific errors said to have been made by the primary judge. Once again, no specific 'grounds' which the primary judge allegedly failed to consider are identified.

24    In any event, this ground of appeal is without merit. As I have indicated, the primary judge methodically went through everything advanced by the appellant which was reasonably capable of being construed as a ground of review, and considered each carefully, when it was worthy of any consideration at all. Ground of appeal 4 is dismissed.

25    There were suggestions made from the bar table at the hearing of the appeal that the appellant was unable to present his case properly because of mental illness. There is material in the appeal book indicating that in August 2018 the appellant was prescribed medication for 'mixed anxiety and depressive disorder'. As I have said, the primary judge accepted that the appellant's mental illness was real, but he was not satisfied that it deprived him of the opportunity to meaningfully participate in the hearing before the Tribunal: see primary judgment at [75]. In this court, no application for an adjournment, much less for the appointment of a litigation representative, was made on the basis of the appellant's mental illness. No medical evidence indicating that anxiety and depression made the appellant unfit to present his case in this court was tendered. In my observation of the appellant in court, he had no difficulty in understanding what the interpreter said to him or in giving replies. He appeared to be following the course of the hearing and did not appear agitated or confused. There was no basis for the court to conclude that the appellant was disabled by reason of mental illness from presenting his case as best he could.

26    In truth, the appellant was in the position in which unsuccessful protection visa applicants who are unrepresented often find themselves in this court. That is, he appealed on the basis of generic grounds which, it can be inferred, were not prepared by reference to the circumstances of his case, and which he does not understand. He was not able to articulate any basis on which the primary judge made an error. In those circumstances I asked counsel for the Minister whether there was anything the Minister, as a model litigant, wished to identify as possible cause for concern about the reasons of the Tribunal or the reasons of the primary judge. She said there was not.

27    I have reviewed the reasons of the primary judge in the context of the reasons of the Tribunal, in order to ascertain whether there is any cause for such concern. But there is no error on the face of the primary judge's careful and comprehensive reasons. The Federal Circuit Court was not authorised to look into the merits of the appellant's claims and it did not. It did, however, consider every conceivable kind of jurisdictional error that the Tribunal may have made, as the appellant's broad generic grounds of review required it to do.

28    In truth, the reason why the Tribunal affirmed the decision of the delegate to refuse a protection visa was straightforward: it did not accept that the appellant had been subject to any persecution or significant harm when he was in India, and the country information did not indicate that he would suffer any persecution or harm on his return. This was so even after the Tribunal accepted, not without serious reservations, that the appellant had some involvement with SAD(A). The findings the Tribunal reached were open to it, as the evidence relied on by the appellant was contradictory and lacked specificity. The primary judge was correct to conclude that no errors arose on the face of the Tribunal's decision: see primary judgment at [124].

29    The appeal must be dismissed.

Costs

30    Counsel for the Minister submitted that if the appeal were dismissed, her client's costs should be fixed at $4,000 as that amount is significantly less than the amount that could be claimed under a short form bill for an appeal involving a hearing (Federal Court Rules 2011 (Cth) Schedule 3 item 15) and it is reasonable and proportionate to the nature and complexity of the case. The appellant opposed that solely on the basis that he only has $500 so it would be difficult to pay. But in general, the inability of an unsuccessful party to pay is no reason to refuse the usual order that costs should follow the event. I accept that the amount claimed is reasonable and proportionate in the context of the court's rules. An order for the appellant to pay the Minister's costs of the appeal fixed at $4,000 will be made.

Associate:

Dated:    22 October 2020