Federal Court of Australia

AQX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1075

ORDERS

THE COURT ORDERS THAT:

1.    The application for an adjournment be refused.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

GOODMAN J

INTRODUCTION

1    The appellant is a citizen of Sri Lanka who arrived in Australia on 26 May 2013 as an unauthorised maritime arrival. On 16 September 2016, the appellant lodged an application for a Safe Haven Enterprise (Class XE) (subclass 790) visa.

2    On 23 March 2017, following an interview with the appellant on 16 February 2017, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made a decision to refuse to grant the appellant a visa. On 28 March 2017, that decision was referred to the Immigration Assessment Authority for review. On 19 January 2018, the Authority affirmed the delegate’s decision. On 14 February 2018, the appellant filed an application for judicial review with the then Federal Circuit Court of Australia.

3    On 11 November 2019, the primary judge heard the application for judicial review and on 21 November 2019, she dismissed it with costs: AQX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3331.

4    The appellant appeals from the decision of the primary judge. The appellant does not seek to advance in this appeal the grounds of review that he advanced before the primary judge. Instead, he seeks to advance different grounds. The Minister did not seek a dismissal of the appeal on this basis and, fairly, submitted that the Court should treat the appellant’s Notice of Appeal as in effect an application for leave to advance the new grounds.

5    During the course of the hearing, the appellant sought an adjournment of the hearing to allow him the opportunity to obtain legal representation. For the reasons set out below, the application for an adjournment and the appeal are each dismissed.

adjournment application

6    The appellant sought an adjournment on the bases that: he was a layperson and needed more time so that a lawyer could represent him; he had previously lost his job but had very recently re-commenced employment; and he had been admitted to hospital for three weeks earlier this year for COVID-19 and recently was required to self-isolate following a re-infection.

7    The principles relevant to an application for an adjournment so that a party may obtain legal representation were summarised by Jackson J in WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114 at [2]:

(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].

8    I refuse to grant the adjournment for the following reasons.

9    First, the appellant has had ample time in which to arrange legal representation. The primary judgment was delivered on 21 November 2019 and the Notice of Appeal was filed on 17 December 2019. In December 2021, the parties were notified that the hearing was scheduled for 8 April 2022. I have no reason to doubt the veracity of the appellant’s submission as to his recent health issues, however, this is at best an explanation which covers only a small fraction of the almost two and one-half years between the delivery of the primary judgment and the hearing of the appeal.

10    Secondly, the appellant has not explained why he did not obtain legal representation during the remainder of that two and one-half year period when he was not ill.

11    Thirdly, there is no evidence of any attempts to obtain legal representation, including pro bono representation.

12    Fourthly, to the extent that the appellant suggests that he is impecunious, there is no evidence of his financial position and in any event this is not of itself a barrier to legal representation: see WZAVK at [11].

13    Finally, the application for an adjournment was not made until the hearing of the appeal, at a time when the Minister was in a position to proceed and the resources of the Court and an interpreter had been deployed toward the hearing of the appellant’s appeal. At that time, it was too late for such resources to have been re-deployed to the hearing of cases of other litigants in the Court: see WZAVK at [15]; FOH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1525 at [12] (Jackson J).

consideration of the appeal

The need for leave to rely upon the grounds of appeal

14    The task on a judicial review application is to determine, by reference to the grounds of review advanced, whether the decision under review was made within the authority conferred by the statute (here, s 473CC of the Migration Act 1958 (Cth)) upon the decision-maker (here, the Authority): MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [29]-[30] (Kiefel CJ, Gageler, Keane and Gleeson JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12 at [27] (Beach, Thawley and Cheeseman JJ). The question whether the Authority’s decision was within the authority conferred upon it by the Act is to be answered by reference to the circumstances extant when the decision was made and events subsequent to the date of the decision are irrelevant: EGZ17 at [28]-[29].

15    The grounds of review advanced before the primary judge are reproduced (without alteration) below:

Ground 1

The Second Respondent committed jurisdictional error by failing to consider or making a finding on a claim or an integer of claim that arose either expressly or clearly on the information and evidence before it.

Particulars:

a)     The applicant’s claim of breaching the Court bail, failure to appear in the Court and the consequences that could arise in his return.

b)     Although the IAA stated that the applicant testifying before Lessons Learnt and Reconciliation Commission (LLRC), there is no finding for his claimed fear.

b)     Realistic findings of Cumulative consideration of the applicant’s claims. The Second Respondent made Jurisdictional Error by failing to make inquiries.

Ground 2

The Second Respondent made Jurisdictional Error by failing to make inquiries.

Particulars

The applicant’s representative stated in his submission that “We are instructed by the applicant that the said documents are genuine. We respectfully request that you kindly use your good offices and check the authenticity of the documents through the Australian High Commission in Colombo”.

All the genuine corroborating Court documents were rejected on the basis of that country information suggesting document fraud is prevalent in Sri Lanka.

16    The grounds of appeal to this Court as set out in the Notice of Appeal are reproduced (without alteration) below:

Grounds of appeal

1.    Ground One. The Federal Circuit Court failed to find that the Authority’s decision was vitiated by jurisdictional error in that it failed to consider an integer of the Applicant’s protection claims, leading to a failure to exercise jurisdiction

Particulars

Applicant claimed that he was threatened by an unknown armed group because he worked for and supported IRA Thurairatnam of the TNA, He states “After the election IRA Thurairatnam won the election with the majority of votes, he was a house logo 3 and I continued to support him and he won the election 9/10/2012, they made a bigger threat and they told me as I was supporting him and campaigning he won the election, therefore we will kill you” [CB18]

2.    Ground Two. The Federal Circuit Court failed to find that the Authority failed to exercise its powers pursuant to s 473CC within the bounds of reasonableness in that it made findings that were not supported by evidence, leading to a decision that was plainly unjust and lacking an evident and intelligent Justification.

Particulars

The Authority noted that refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. The DFAT Report notes “Most returnees have incurred significant expenses or debt to undertake their outward journey”. DFAT report suggests that returnees may also face societal discrimination which could also affect their ability to secure housing and employment”. The Authority found “These are practical difficulties which could be faced by any people seeking to re-establish themselves after being away from their country for an extended period of time. I have found that the applicant would return to Battacaloa and would reside with his family. I conclude his family will would be able to provide him with some genuine practical assistance with reintegration into Sri Lanka society including accommodation upon his return”. [Paragraph 57, CB 181].

…

Grounds of appeal

1.    Grsounds One. The Federal Court failed to find that the authorities decision was vitiated by jurisdictional error in that failed to consider an integer of the Applicant’s protection claims, leading to a failure to exercise jurisdiction.

Particulars

Applicant claimed that he was threatened by the the authority because he was the only witness for his brothers murder by SriLankan Arm Forces. He been previously arrested and tortured.

Ground TWO. The Federal court failed to find that the authority failed to exercise it’s powers pursuant to s473CC within the bounds of reasonableness in that it made findings that were not supported by evidence, leading to a decision that was plainly unjust and lacking an evidence and intelligent justification.

17    The essence of the first ground of appeal (taking the two Grounds One together) is that the Authority acted beyond the authority conferred upon it by the Act because it failed to consider integers of the appellant’s protection claim. To this extent, it is similar to the first ground of review before the primary judge. However, the particulars to the first ground of appeal bear no relationship to the particulars to the first ground of review, with the consequence that the matters raised by the first ground of appeal are matters that were not raised before the primary judge.

18    The second ground of appeal (whether with or without particulars) was not a matter raised as part of the grounds of review advanced by the appellant before the primary judge.

19    Thus, the appellant seeks to raise, as grounds of appeal, alleged errors by the Authority that were not the subject of the application for review before the primary judge. This cannot occur without a grant of leave by the Court: Francuziak v Minister for Justice [2015] FCAFC 162; (2015) 238 FCR 332 at 335 [11].

Consideration of the question of leave

20    The exercise of the Court’s discretion to grant such leave is informed by s 37M of the Federal Court of Australia Act 1976 (Cth), which requires the discretion to be exercised in a manner which facilitates the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. As the Full Court (Katzmann, Banks-Smith and Rofe JJ) explained in Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [34]-[37], the predominant consideration is the interests of justice: see also VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at 598 [46] per Kiefel, Weinberg and Stone JJ, and Francuziak at [11]. In considering the interests of justice, the merits of the proposed new grounds are an important consideration: Khalil at [36], EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 129 at [5] (Rangiah, Stewart and Cheeseman JJ).

21    I turn now to consider the merits of the grounds of appeal.

Ground 1

22    The essence of the first ground is that the Authority acted beyond the authority conferred upon it by the Act because it failed to consider integers of the appellant’s protection claim for the reasons particularised. The particulars provided (reproduced without alteration) are:

(1)    The appellant claimed that he was threatened by an unknown armed group because he worked for and supported IRA Thurairatnam of the TNA. He states: “After the election IRA Thurairatnam won the election with the majority of votes, he was a house logo 3 and I continued to support him and he won the election 9/10/2012, they made a bigger threat and they told me as I was supporting him and campaigning he won the election, therefore we will kill you” [CB18]; and

(2)    Applicant claimed that he was threatened by the authority because he was the only witness for his brothers murder by SriLankan Arm Forces. He been previously arrested and tortured.

The first particular

23    There can only have been a failure to consider this claim if it was in fact made to the Authority. The materials before the Authority, as reproduced in the Appeal Book, do not appear to include evidence that such a claim had been made by the appellant to the Authority. The appellant did not identify where such a claim had been made by him or on his behalf. Further, “[CB18]” which is included in the first particular and which I take to be a reference to the Court Book before the primary judge, is a page from the appellant’s irregular maritime arrival and induction interview and does not contain such a claim.

24    In the absence of evidence of any such claim having been raised before the Authority, the first ground, in so far as it relies upon the first particular, is devoid of merit.

The second particular

25    Again, the first step is to identify whether the appellant made the claims particularised to the Authority. There are two aspects of the second particular.

26    The first is that the Authority failed to consider the appellant’s claim that he was threatened by the Authority because he was the only witness to the murder of his brother by Sri Lankan armed forces.

27    The materials that were before the Authority, as reproduced in the Appeal Book, refer to the appellant’s brothers having been detained and tortured, but there is no evidence in those materials of a claim that any of the appellant’s brothers had been murdered, that the appellant witnessed such a murder, or that he was threatened by Sri Lankan armed forces as a result. The appellant did not identify where such a claim had been made by him or on his behalf.

28    The second aspect of the second particular is that the Authority failed to consider the appellant’s claim that he had been previously arrested and tortured. The appellant did not identify where this claim had been made by him or on his behalf. The materials that were before the Authority do include a claim by the appellant that he had been tortured for identifying STF personnel who abducted his brother N. The Authority considered this claim but only accepted that the appellant had been detained and mistreated for a short time in October 2010. The Authority also considered claims that the appellant’s brothers had been tortured and accepted some aspects of those claims but rejected others ([11]–[28]). Thus, there was no failure to consider the matters in the second particular.

29    For the above reasons, the first ground in so far as it relies upon the claims set out in the second particular, is devoid of merit.

Ground 2

30    The essence of the second ground is that the Authority acted beyond the authority conferred upon it by the Act because it made findings unsupported by evidence, and thus that the decision was largely unreasonable. The particulars of that ground (reproduced without alteration) are:

The Authority noted that refugees and failed asylum seekers face practical challenges to successful return to Sri Lanka. The DFAT Report notes “Most returnees have incurred significant expenses or debt to undertake their outward journey”. DFAT report suggests that returnees may also face societal discrimination which could also affect their ability to secure housing and employment”. The Authority found “These are practical difficulties which could be faced by any people seeking to re-establish themselves after being away from their country for an extended period of time. I have found that the applicant would return to Battacaloa and would reside with his family. I conclude his family will would be able to provide him with some genuine practical assistance with reintegration into Sri Lanka society including accommodation upon his return”. [Paragraph 57, CB 181].

31    With the exception of the first sentence of the particulars, none of the matters set out in the particulars appear to be findings made by the Authority. The first sentence is applicable in a general way to the findings made at paragraphs [51] to [65] of the Authority’s decision, which record the challenges faced by returnees. Those findings are supported by evidence, largely country and other reports, and the proposition that these findings were based on no evidence is fanciful.

32    There appears to be no finding by the Authority that a DFAT report noted or suggested the matters referred to in the particulars. The Authority’s Decision also does not appear to include the words quoted in the particulars. Again, the appellant did not identify where the Authority made the findings he seeks to impugn.

33    The reference in the particulars to “Paragraph 57, CB181” makes no sense. Page 181 of the Court Book before the primary judge is a copy of the appellant’s appointment of representative provided to the Authority and does not contain any of the matters referred to in the particulars. There is no paragraph [57] on page 181 of the Court Book. Further, paragraph [57] of the Authority’s decision does not contain any of the matters referred to in the particulars.

34    For the above reasons, the second ground is devoid of merit.

35    The absence of merit in both grounds of appeal means that leave to rely upon those grounds should be refused. On that basis – and without reference to other factors that might otherwise have weighed in favour of a grant of leave: see EQV20 at [25], or against such a grant, see for example Francuziak at [15], [18] and [19] – it follows that the appeal should be dismissed.

Other matters raised by the appellant

36    At the hearing, the appellant referred to various matters taking place in Sri Lanka which, he submitted, would place him in danger if he were to return to that country. However, these are matters subsequent to the Authority’s decision and are thus irrelevant to the question of whether the Authority made a jurisdictional error in making that decision (see [14] above). The appellant also (impermissibly) invites the Court to consider the merits of his application for a visa.

conclusion

37    The application for an adjournment is refused and the appeal should be dismissed with costs. I will make orders accordingly.

Associate:     

Dated:    13 September 2022