Federal Court Dismisses Protection Visa Appeal

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[NAME] v Minister for [NAME] [2018] FCA 1099 Appeal from: [NAME] v Minister for [NAME] [2016] FCCA 3230

File number: NSD 2227 of 2016

Judge: [NAME] J

Date of judgment: 25 July 2018

Catchwords: MIGRATION – protection visas – appeal from the decision of the Federal Circuit Court to dismiss application for review of a decision of the Refugee Review Tribunal to refuse application for a Protection (Class XA) visa – consideration of nature of appeal to Federal Court – appeal by way of rehearing – whether Appellant identified appellable error – whether Tribunal considered complimentary protection obligations PRACTICE AND PROCEDURE – legal representation – whether right to legal assistance – consideration of circumstances in which a referral should be made for pro bono legal assistance – whether referral to legal assistance should be made

Legislation: Federal Court Rules 2011 (Cth) rr 4.12, 36.75

Cases cited: [NAME] v Minister for [NAME] [2016] FCCA 3230 AMF15 v Minister for [NAME] [2016] FCAFC 68, (2016) 241 FCR 30 [COMPANY] v [NAME] (No 2) [COMPANY] [2001] FCA 1833, (2001) 117 FCR 424 [NAME] v [NAME] [2011] NSWCA 375 McGibbon v Linkenbagh (1996) 41 ALD 219 Minister for [NAME] v SZVFW [2017] FCAFC 33, (2017) 248 FCR 1 [NAME] v Minister for [NAME] [2016] FCA 630 [NAME] v [NAME] (1994) 181 CLR 309 [NAME] v Minister for [NAME] [2013] FCAFC 146, (2013) 216 FCR 445 [NAME] v Minister for [NAME] [2015] FCA 985 [NAME] v Minister for [NAME] [2017] FCA 90

Date of hearing: 24 May 2018

Registry: [NAME]: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 32

Counsel for the Appellant: [redacted]

Solicitor for the First Respondent: [redacted]

Counsel for [RESPONDENT] Respondent: [redacted]

ORDERS NSD 2227 of 2016

BETWEEN: [APPELLANT]15 Appellant

AND: [APPELLANT] FOR [NAME] First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL [RESPONDENT] Respondent

JUDGE: [NAME] J DATE OF ORDER: 25 JULY 2018

THE COURT ORDERS THAT:

1. The Administrative Appeals Tribunal be joined as [RESPONDENT] Respondent. 2. The appeal is dismissed. 3. The Appellant is to pay the costs of the First Respondent, either as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR

JUDGMENT 1 The Appellant in the present proceeding, identified by the pseudonym [NAME], is a citizen of Sri Lanka. He arrived in Australia by boat in August 2012. 2 In May 2013, the Appellant applied for a Protection (Class XA) visa. A delegate of the Respondent Minister for [NAME] refused that application in December 2013. An application was then filed with the former Refugee Review Tribunal for review of the delegate's decision. In February 2015, the Tribunal affirmed the delegate's decision. 3 An application for judicial review of the Tribunal's decision was filed in March 2015. The Federal Circuit Court of Australia dismissed that application in December 2016: [NAME] v Minister for [NAME] [2016] FCCA 3230. 4 A Notice of Appeal was then filed in this Court. The Grounds of appeal are there set forth as follows (without alteration): The Federal Circuit court failed to find, in respect of the Respondent, on 14 December 2016, that the [NAME] declined its jurisdiction to me on the basis of grounds stated in my Federal Circuit Court Application. I have stated my grounds of review and the particulars of the grounds in my Federal Circuit Court application lodged with your court. I still rely on the grounds and the particulars for the judicial review with the Federal Court of Australia. I have no lawyer to represent me in this court as I am unemployed and I have no money to pay for legal representation. 5 The Appellant did not appear before the Court at the hearing of the appeal. Indeed, he had departed from Australia on 16 April 2018. He had been informed by email of the listing of the hearing a few days prior to his departure. The Respondent Minister was represented by his solicitor. [RESPONDENT] Respondent filed a submitting notice save as to costs. 6 An application made on behalf of the Minister at the outset of the hearing to have the appeal summarily dismissed pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) was rejected. It was considered that the preferable course was to consider the merits of the appeal so that [NAME] had some assurance that his arguments had been considered. 7 The appeal is to be dismissed with costs.

The absence of appellable error 8 The Grounds of appeal as set forth in the Notice of Appeal filed in this Court rely (in part) upon the Grounds relied upon before the Federal Circuit Court. 9 The Grounds relied upon in the Federal Circuit Court were there expressed (again without alteration) as follows:

1. The Respondent erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me.

2. The Respondent made an error in law, with the error being a jurisdictional error, by not complying with section 424AA.

3. I intend to provide Transcript of the Respondent's hearing to this Court. 10 As was correctly submitted on behalf of the Respondent Minister, the task that this Court is now called upon to discharge is the exercise of its appellate jurisdiction – and not an exercise of its original jurisdiction. 11 The nature of an appeal to this Court, as is now well-established, is in the nature of a "rehearing" and is a jurisdiction to be exercised for the correction of error: [COMPANY] v [NAME] (No 2) [COMPANY] [2001] FCA 1833 at [20] to [21], (2001) 117 FCR 424 at 434 to 435 ("[NAME]"). In commenting upon [NAME] and other decisions of this Court, [NAME] JJ in Minister for [NAME] v SZVFW [2017] FCAFC 33, (2017) 248 FCR 1 at 13 to 14 ("SZVFW") have helpfully summarised the position as follows: [40] It is important to now say something about the nature of the appeal. The appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth). It is an appeal in the nature of a rehearing. This has important implications for the nature and scope of the appeal. It is well established that a rehearing is not a new hearing during which the original application is determined without regard to what happened in the Court below and without regard to its findings … [41] It is equally well established that the role of the Court on an appeal by way of rehearing is the correction of error. As Allsop J (as his Honour then was) emphasised in [COMPANY] v [NAME] (No 2) [COMPANY] (2001) 117 FCR 424 ([NAME]) at [21] in such a case there is a "need to show error on appeal". It is desirable to set out in full that paragraph from his Honour's judgment (noting that Drummond and Mansfield JJ agreed with it): However, this conclusion does not alter the need to show error on appeal. In [NAME[NAME] and [NAME] identified the need for the demonstration of error in the trial judge's findings or conclusions and they expressed the view that the statements in Warren v Coombes (1979) 142 CLR 531 (dealing with an appeal by way of rehearing) that an appellate court must not shrink from giving effect to its own conclusion were premised on a conclusion that the decision of the trial judge was wrong and should be corrected. [42] The need to identify appealable error in an appeal by way of rehearing and the incorrectness of an approach which simply invites the [ADDRESS] to consider the matter afresh and come to its own view, which appeared at least at one point to be the position advanced by the Minister, is reflected in the following passage from the joint judgment of Siopis, Gilmour and Katzmann JJ in [COMPANY] v [COMPANY] (2016) 241 FCR 241 at [85] (which, notably, refers approvingly to Allsop J's observations in [NAME]): In effect, [NAME] sought to re-run the case it lost below. Yet, the appeal is in the nature of a rehearing; it is not a hearing de novo. [ADDRESS]'s task is to correct error. The determination of the question of whether [NAME] was acting in good faith and the inspection was sought for a proper purpose was largely an evaluative one. The [NAME] judge's decision is entitled to be given some weight. Where, as here, the nature of the issues is such that there cannot be said to be one truly correct answer, the availability of a different view or a preference for a different view, is unlikely to be sufficient: [NAME] v [NAME] (No 2) [COMPANY] (2001) 117 FCR 424 at [25] per Allsop J (as his Honour then was), [NAME] agreeing. As Allsop J went on to explain at [30]: The proper approach is not to ask the court to survey all the evidence, directed by the otherwise unassailable findings on credit, and to ask it to arrive at its own conclusions, without "essaying the necessary task of positively demonstrating that the trial judge was wrong" … It is not appropriate to treat the appeal as though it were a new trial on the evidence and constrained merely by the unassailable factual findings. Error must be demonstrated … The views and conclusions of the trial judge ultimately have to be shown to be wrong. They should not be laid to one side and a simple re-argument of the case take place. 12 The Appellant [NAME] has failed to expose any appellable error. 13 The [NAME] Judge considered and rejected the first Ground relied upon below. 14 The [NAME] Judge concluded that the Tribunal had considered the complementary protection criterion: [2016] FCCA 3230 at [21]. No appellable error is discernible in the reasons of the [NAME] Judge for so concluding. As the [NAME] Judge concluded, the Tribunal had in fact addressed and resolved the claim for complementary protection. The reasons for decision of the Tribunal thus recognise at the outset the need to consider a "complementary protection" claim. In summarising the relevant law, those reasons thus state in part as follows: RELEVANT LAW 3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa. 15 Those reasons thereafter separately consider as follows the criterion to be satisfied: Complementary protection criterion 14. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion'). 15. 'Significant harm' for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture', are further defined in s.5(1) of the Act.

16. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act. 16 Having set forth this analysis, the Tribunal thereafter addressed the evidence and claims made. The Tribunal then returned to the question of complementary protection as follows: CONCLUDING PARAGRAPHS 69. The applicant has not made any other claims to fear harm in Sri Lanka. On the evidence before it and for the reasons outlined above the Tribunal is not satisfied the applicant has a well-founded fear of persecution for a Convention reason in Sri Lanka.

70. For the reasons discussed above, the Tribunal is also not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Sri Lanka, there is a real risk the applicant will suffer significant harm.

71. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the [NAME]. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

72. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

73. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.

Accordingly, the applicant does not satisfy the criterion in s.36(2). 17 Any contention that the Tribunal failed "to consider in full the complementary protection obligations Australia owed to" [NAME] is contrary to the express reasons provided by the Tribunal. The Tribunal considered the relevant legal requirements and applied those principles to the facts. 18 The [NAME] Judge was correct in rejecting the first Ground: [2016] FCCA 3230 at [21] to [22]. 19 No submissions were advanced before the [NAME] Judge in respect to Ground 2 and no transcript was provided, as envisaged by Ground 3. Ground 2 was nevertheless characterised by the [NAME] Judge as "an unparticularised claim the Tribunal failed to comply with (in effect) s.424AA of the Act" and the [NAME] Judge concluded that the claim "disclose[d] no jurisdictional error": [2016] FCCA 3230 at [23]. No appellable error is discernible in the reasons of the [NAME] Judge for rejecting Ground 2. 20 The [NAME] Judge also resolved an argument that was not to be found in the Grounds of application but rather (apparently) in submissions advanced during the course of the hearing. That argument placed reliance upon a "letter", which was identified as a translation of a newspaper article published on 12 January 2015. The translated newspaper article had been sent to the Tribunal after the hearing and was expressly referred to by the Tribunal at para [24] of its reasons for decision. An argument that the "letter" had not been "seriously" considered was, accordingly, rejected: [2016] FCCA 3230 at [18] to [20]. There is again no error apparent in the reasons of the [NAME] Judge. 21 The Grounds of appeal, as expressed in the Notice of Appeal by reference to the arguments relied upon before the Federal Circuit Court, accordingly fail.

The lack of legal representation 22 It is unclear whether the reference in the Notice of Appeal to [NAME] having "no lawyer" and having "no money to pay for legal representation" is a mere statement of fact or is separately relied upon as an appellable error. 23 In considering any such argument, it may readily be accepted at the outset that legal representation confers upon a party an unquestionable advantage. Legal representation generally assists in the identification of relevant factual and legal issues and facilitates a party's claim being presented for resolution in a focussed and disciplined manner. Legal representation generally assists the Court to focus upon the strengths of a party's case, which is generally presented for resolution in a way consistent with the lawyer's duties to both his client and the Court. 24 Notwithstanding the considerable benefit that legal representation brings to the presentation of a party's case, it must also be recognised that the Court itself has responsibilities to all parties – especially the unrepresented. [ADDRESS], it has thus been said, has "an obligation to ensure that [an unrepresented party] suffers no meaningful disadvantage in the conduct of his or her case because she or he does not have the skills or knowledge of a lawyer": [NAME] v Minister for [NAME] [2016] FCA 630 at [32] per [NAME[NAME] ("[NAME]'). [ADDRESS] has an "overriding duty to ensure that a trial is fair": [NAME] v [NAME] [2011] NSWCA 375 at [309] per [NAME] (as her Honour then was), [NAME] agreeing ("[NAME]"). In discharging that duty there may well be a tension between ensuring that an unrepresented party has a reasonable opportunity to present his case and the duty of the Court to ensure a fair trial for all the parties to a dispute: [NAME] [2011] NSWCA 375 at [310] to [316] per [NAME], [NAME] and [NAME] agreeing. These observations of the [NAME] of Appeal were cited with approval in [NAME] v Minister for [NAME] [2013] FCAFC 146 at [37], (2013) 216 FCR 445 at 452 to 454 per [NAME] (Allsop CJ and [NAME] agreeing). See also AMF15 v Minister for [NAME] [2016] FCAFC 68 at [39], (2016) 241 FCR 30 at 44 to 46 per [NAME] and [NAME] JJ 25 But there is no common law "entitlement" or absolute right to legal representation: [NAME] v [NAME] (1994) 181 CLR 309 at 328 per [NAME], [NAME], [NAME] and [NAME] JJ. See also McGibbon v Linkenbagh (1996) 41 ALD 219 at 228 per [NAME] (as her Honour then was). In rejecting an argument that a [NAME] Judge had erred in failing to adjourn a hearing to enable legal representation to be obtained, [NAME[NAME] in [NAME] v Minister for [NAME] [2017] FCA 90 concluded: [40] Further, there is no statutory right to legal representation. Nor is there any absolute right to legal representation at common law. In civil proceedings procedural fairness does not require that a party be provided with legal representation, no matter how serious the consequences of the proceedings might be. (Citations omitted.) See also: [NAME] v Minister for [NAME] [2015] FCA 985 at [14] per McKerracher J. 26 The reasons of the [NAME] Judge disclose on their face no departure from the responsibilities owed by a Judge to an unrepresented party to ensure that the hearing is "fair": cf. [NAME] [2011] NSWCA 375. Those reasons disclose a review by the [NAME] Judge of the claims for protection being relied upon by [NAME] and a review of the Tribunal's reasons. Given the apparent care with which the [NAME] Judge approached the case before him, there is no self-evident "meaningful disadvantage" suffered by [NAME]: cf. [NAME] [2016] FCA 630. 27 There is, accordingly, no substance in any argument now sought to be relied upon which contends that the proceedings before the [NAME] Judge miscarried because [NAME] was not there represented by a lawyer. 28 Consideration has been given to whether [NAME] should be referred for pro bono legal assistance pursuant to r 4.12 of the Federal Court Rules. But no such referral is considered appropriate for either of two reasons, namely because: [NAME] has left Australia and there would be no utility in making such a reference; and/or the Grounds of appeal are without merit. 29 Even though the Appellant has left the country, it should nevertheless be noted that the mere fact that a party is unrepresented is not a sufficient reason of itself to warrant a referral for legal assistance. The claims as advanced before the Federal Circuit Court and this Court on appeal are so lacking in merit that any referral would not be an appropriate invocation of the pro bono assistance that barristers provide to unrepresented parties in particular and (more broadly) the community and this Court. The existence of a pro bono referral system, and the fact that members of the bar are prepared to offer their services for free, is a resource which should be cherished and not abused. Referrals should be reserved, generally, for those cases which are perceived to have some merit and in circumstances where the Court would be assisted by the input of a legal practitioner.

CONCLUSIONS 30 No appellable error is exposed. The "need to show error on appeal" (cf. [NAME] [2001] FCA 1833, (2001) 117 FCR 424; SZVFW [2017] FCAFC 33, (2017) 248 FCR 1) has not been met. Nor is the Appellant's lack of legal representation any reason to set aside the decision of the [NAME] Judge. 31 The appeal should be dismissed. 32 There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE: 1. The Administrative Appeals Tribunal be joined as [RESPONDENT] Respondent. 2. The appeal is dismissed. 3. The Appellant is to pay the costs of the First Respondent, either as taxed or agreed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME] [NAME].

Associate: Dated: 25 July 2018