BRQ16 v Minister for Immigration and Border Protection [2017] FCA 1350

FEDERAL COURT OF AUSTRALIA

BRQ16 v Minister for Immigration and Border Protection [2017] FCA 1350 Appeal from: Application for leave to appeal: BRQ16 v Minister for Immigration & Anor [2017] FCCA 1360

File number: VID 657 of 2017

Judge: NORTH J

Date of judgment: 17 November 2017

Date of hearing: 16 November 2017

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 20

Counsel for the Applicant: Applicant appeared in person with the assistance of an interpreter

Counsel for the Respondents: Mr L Brown

Solicitor for the Respondents: Mills Oakley

ORDERS VID 657 of 2017

BETWEEN: BRQ16 Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: NORTH J DATE OF ORDER: 17 NOVEMBER 2017

THE COURT ORDERS THAT:

1. The application is dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NORTH J: 1 On 20 June 2017, the applicant filed an application for leave to appeal from orders made by the Federal Circuit Court on 5 June 2017. 2 The Federal Circuit Court dismissed an application for review of a decision of the Administrative Appeals Tribunal made on 17 June 2016. The Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Boarder Protection, not to grant the applicant a protection (subclass 866) visa. 3 The applicant is a Sri Lankan citizen of Tamil ethnicity. His religion is Hinduism and he is 28 years old. 4 The applicant claimed, before the Tribunal, to fear persecution from the Sri Lankan authorities because he lived in Batticoaloa, an area controlled by the Liberation Tigers of Tamil Eelam (LTTE), and his uncle was an assistant leader / army officer with the LTTE. He said that as a result his father was kidnapped and tortured and subsequently left Sri Lanka in response. The applicant claimed he was questioned by the police about his father's whereabouts. As the circumstances were getting too dangerous for him, he left Sri Lanka for one and a half years and went and worked in Qatar. He experienced no difficulty leaving Sri Lanka. But upon his return in 2010, the police took his passport and was questioned why he and his father had left Sri Lanka. His uncle was captured on 4 July 2009 and the police again questioned him why he did not tell them about his uncle's whereabouts. They released him on the same day and returned his passport some days later. These events were central to the claim made by the applicant. He gave a number of other instances of alleged harassment on the basis of his Tamil ethnicity by the Sri Lankan authorities as well. 5 The Tribunal had significant concern about the applicant's credibility generally, and in particular, in respect of the central claim. The Tribunal stated: 69. As I had significant concerns about the applicant's credibility in much of the evidence he gave and on questioning during the hearing, his reference to his uncle was somewhat vague, I do not accept that his uncle's rank and involvement with the LTTE was high or significant. 70. Further, I do not accept that the authorities had any interest in the applicant on the basis of any involvement his uncle had with the LTTE. On his own evidence when the applicant was questioned, it was for short periods and did not relate to any LTTE related issues. … 73. I accept that when the applicant and his father returned to their home region they were questioned by the authorities. Reports indicate that Tamils returning from abroad are often questioned by the authorities in their home region and at times they are harassed. However, on the basis of the DFAT advice I find that it is low levels of harassment which does not rise to serious or significant harm. 74. As stated above I have accepted that the applicant was questioned and from time to time was harassed by the police most likely because he is a Tamil but I find that all the evidence the applicant gave indicates little to no interest in him by the authorities. I found that the applicant has sought to put a gloss on the level of interest in him and embellished the evidence to magnify his claims for protection. 6 The Tribunal then considered the country information concerning the risk of harm to the applicant as a young Tamil male. The Tribunal found: 82. However I do not accept that the authorities had any particular interest in the applicant beyond some short sessions of questioning not related to LTTE connections. I noted too that he was issued a passport in 2008 before the war ended and travelled lawfully to Qatar and returned to Sri Lanka and took up employment in the construction industry in his home town of Batticaloa. I did not accept as plausible that with the presence of the SIS and CID at the airport the applicant would have been able to travel freely without any questioning had the authorities had any interest in him. Similarly the authorities had no interest in his father beyond perhaps some questioning as all Tamils were by the Sri Lankan authorities. He too was issued a passport during the war, travelled to Saudi Arabia for work, returned to Sri Lanka and recently returned to Saudi Arabia for work without the SIS or CJD showing any interest in him. 7 And concluded: 87. Having regard to all of the above I am satisfied and find that the applicant does not come within any of the categories of persons identified by the UNHCR or Upper Tribunal as would be at real risk of persecution or serious harm on return to Sri Lanka. 8 The applicant also claimed a fear of persecution as a result of being a returned asylum seeker. On this issue the Tribunal concluded: 97. I accept that monitoring and harassment of Tamils continues. I accept on return to his home region the applicant will be noticed for his absence and he is likely to be questioned by the Sri Lankan authorities. He is also likely to face low level discrimination and social and economic disadvantage. I do not accept there to be a real chance that on his return to Sri Lanka he will face serious harm now or in the reasonably foreseeable future because of returning as a failed asylum seeker. Given my conclusions on the applicant's profile not being of any interest to the authorities and the available country information discussed, I do not find that the monitoring and harassment, social or economic discrimination rises to the level of serious or significant harm within the meaning of s.36(2A). 9 The applicant further claimed a fear of persecution on the basis that he had left Sri Lanka illegally. The Tribunal explained why it rejected that claim as follows: 100. I accept that on returning to Sri Lanka the applicant will face questioning at the airport about his activities during the time he has been outside of Sri Lanka. I accept that he will be charged and may be convicted under Sri Lanka's departure laws. The information from DFAT is that returnees have been granted bail on personal surety immediately by magistrates. I note the applicant has family in Sri Lanka who would be able to come and collect him from court. While I accept reports indicate that prison conditions in Sri Lanka are generally poor, they do not amount to the level of serious or significant harm and as noted earlier, the DFAT report indicates that all Sri Lankans are treated the same way regardless of religion or ethnicity and there is no evidence or information to indicate mistreatment of returnees held on remand. Given also my findings regarding the applicant's profile being of no interest to the authorities, the Tribunal finds that the applicant will not be treated differently because of being convicted of breaches of departure laws for any Convention reason. 10 On 7 July 2016, the applicant applied to the Federal Circuit Court for review of the decision of the Tribunal on the grounds that: a) the decision of the Tribunal is affected by an error of law; and b) the Tribunal denied the applicant procedural fairness. 11 The Federal Circuit Court first dealt with a claim made orally by the applicant that the Tribunal had confused two of the applicant's uncles. The Federal Circuit Court rejected this argument as follows: 9. … I am of the view that there is no reasonable prospect of succeeding at a hearing that there has been a failure to take into account relevant evidence. The claim that the applicant is now making to the court is completely different to and contradicts the claims he made before the Tribunal. That proposition is established by the written statements of the applicant before the Tribunal. 12 At [12] the Federal Circuit Court concluded: The Tribunal has comprehensively canvassed all the claims made by the applicant in support of his application for a Protection visa, and has reached a conclusion in relation to the merits of those claims on the material placed before it by the applicant and his representative. No material has been placed before the Court, which may establish that there has been an error of law or a failure to provide procedural fairness. For those reasons, I dismiss the application pursuant to r.44.12(1A) of the Federal Circuit Court Rules 2001 (Cth) on the basis that the application has not raised an arguable case for the relief claimed. In the circumstances I order that the applicant pay the respondent's costs fixed in the sum of $3,606. 13 On 19 June 2017, the applicant filed in this Court, an application for leave to appeal from the orders made by the Federal Circuit Court. The applicant was at that point represented by solicitors. The proposed notice of appeal was obviously drawn by solicitors and stated: 1. The primary judge erred in dismissing the appellant's application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) ("the Rules"). The primary judge failed to afford the appellant procedural fairness. In the alternative, it was unreasonable for the primary judge to proceed to dismiss the appellant's application under r.44.12(1)(a) in the circumstances. Particulars 1.1 Rule 44.12 sets out the Federal Circuit Court's powers in relation to an application for an order to show cause. The threshold of "an arguable case" is a low one and assists to prevent abuses of the Federal Circuit Court's process. Even if the Federal Circuit Court is not satisfied that there is an arguable case, it is a discretionary matter whether to proceed to dismiss the application. 1.2 The appellant, in lodging an application with the Federal Circuit Court, sought to challenge a decision by the second respondent regarding his application for a Protection (subclass 866) visa. The consequences of such applications are potentially very serious for applicants. Indeed, in this case, the Second Respondent, in making its decision, had accepted that the appellant would face discrimination and harassment on return to his home region and that he would be charged and convicted under Sri Lanka's departure laws. The appellant arrived in Australia as an unauthorised maritime arrival. 1.3 In his application, the appellant identified two distinct grounds of review, being that the decision of the Second Respondent was "affected by an error of law" and "denied the applicant procedural fairness". The applicant articulated grounds of review that met the required standard of an arguable case. 1.4 In his application, the appellant noted that he required a Tamil interpreter, and, as such, the primary judge was on notice that the appellant's ability to understand English was limited or non-existent. 1.5 The appellant prepared his application without legal representation and appeared at the show cause hearing without representation. The appellant noted he had applied to Victoria Legal Aid for legal assistance. We are instructed that, at hearing, the appellant stated that he could attend the Federal Circuit Court with a lawyer if the primary judge permitted additional time. 1.6 We are instructed that, given the characteristics of the appellant and the history of the matter, the judge in the first instance did not take reasonable steps to ensure the appellant understood the process and had the opportunity to present his case. The court has a duty to ensure that an unrepresented litigant does not suffer a disadvantage from exercising their right to be self-represented, and to ensure that proceedings are conducted fairly. In particular, the court has a duty to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. 1.7 It was not reasonable to proceed to dismiss the appellant's application under r.44.12(1)(a) of the Rules in the circumstances. 1.8 Further and in the alternative, in failing to allow the appellant additional time, the primary judge denied the appellant procedural fairness, in the context that the appellant was unrepresented, unable to speak English, and a Protection (subclass 866) visa applicant who arrived in Australia as an unauthorised maritime arrival. 14 At the hearing of the application for leave to appeal, the applicant appeared without legal representation but was assisted by an interpreter in the Tamil language. When asked by the Court the basis of his complaints, the applicant said that he went to a lawyer who said that there was something wrong with the judgment of the Federal Circuit Court but did not say what it was. 15 Ms Carina Ford, the solicitor then acting for the applicant, affirmed an affidavit on 19 June 2017, in which she said: 10. We have requested a copy of the primary judge's reasons for dismissing the appellant's application. We have been advised that they hope to provide reasons to us by 23 June 2017. We have not been able to obtain a transcript in this matter given the timeframe. In the absence of these important documents, the appellant has provided us with instructions regarding his recollection of the events of the show cause hearing to the best of his ability. 11. The appellant instructs that he did not understand what was happening at the hearing and that the hearing was brief. The appellant did not understand that it was a possibility that his matter could be dismissed at the show cause hearing and was confused and that his matter could be dismissed at the show cause hearing and was confused and [sic] distressed when the matter was dismissed. 12. We are instructed that the appellant told the primary judge that, if additional time was allowed, he would obtain a lawyer to represent him. This request appears to have been refused by the primary judge. 16 Leave to appeal is granted if, in all the circumstances of a case, the decision is attended with sufficient doubt to warrant it being reconsidered on appeal, and substantial injustice would result if leave were refused supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 17 The basis of the application which the applicant's previous solicitor sought to make was a challenge to the Federal Circuit Court hearing on the basis of a denial of procedural fairness and unreasonableness. The affidavit of Ms Ford does not say that the applicant asked the Federal Circuit Court for an adjournment of his case. The applicant did not make any such complaint on the hearing of the application for leave to appeal. The transcript of the hearing before the Federal Circuit Court was not in evidence before this Court. 18 There is, thus, no evidentiary basis for the contention that the hearing before the Federal Circuit Court was unfair. It can be accepted that the legal process is confusing to litigants such as the applicant, but nothing before the Court supports the claim that he was unfairly dealt with by the Federal Circuit Court. 19 Further, what is entirely lacking is any challenge to the conclusion of the Federal Circuit Court that the decision of the Tribunal was not affected by any jurisdictional error. For that reason, Mr Brown, who appeared as counsel for the first respondent, rightly contended that even if the procedural fairness arguments were well based, it would be futile to grant a remedy because no basis had been established to challenge the conclusion that the Tribunal had not committed any jurisdictional error. 20 It follows that the orders made by the Federal Circuit Court are not attended by doubt and the application for leave to appeal is refused with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.