AAU15 v Minister for Immigration

[2015] FCCA 2157

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAU15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2157

Catchwords:
MIGRATION – Application for extension of time to bring proceedings – reasonable excuse provided for the delay – time extended – allegation that Tribunal failed to consider claims – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 424AA, 424A, 425, 476(3), 477

WZAPN v Minister for Immigration & Border Protection (2014) 229 FCR 477

Applicant: AAU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 456 of 2015

Judgment of: Judge Smith

Hearing date: 3 July 2015

Date of Last Submission: 3 July 2015

Delivered at: Sydney

Delivered on: 3 July 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Ms N. Maddocks

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The period within which the applicant may make an application under s.476 of the Migration Act 1958 (Cth) in relation to the decision of the Refugee Review Tribunal dated 4 December 2013 be extended to 25 February 2015.

2. The application under s.476 of the Migration Act 1958 (Cth) in relation to the decision of the Refugee Review Tribunal dated 4 December 2015 be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 456 of 2015

AAU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. The applicant in this case is a young Tamil male from the north of Sri Lanka.  He seeks protection in Australia from harm that he says will occur to him if he returns to Sri Lanka. His application for a visa was rejected by a delegate of the Minister in July 2013, and the Refugee Review Tribunal affirmed that decision on 4 December 2014 for reasons that I will set out later.

Extension of Time

1. The applicant did not apply for review of that decision until 25 February 2015. An application to this Court for review of decisions such as that of the Tribunal have to be made within 35 days of the decision. That means that in this case, an application had to be made, by the latest, on 8 January 2015. However, the Court has the power under s.477(2) of the Migration Act 1958 to extend the 35 day period. 

2. There are two conditions on that power. The first is that an application for that order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order. There is no issue in this case that that condition has been met. The second condition is that the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.  The Minister contends that the Court should not be satisfied of that, essentially because there are insufficient prospects of the applicant succeeding in the substantive matter. 

3. The discretion and the matters that go to that second condition are not expressly confined by any particular matter. However, the matters that the Court usually takes into account include the following. First is the length of the delay and the reason for the delay. Second, are the merits of the substantive explanation, and third is any prejudice to the respondent. The Minister does not suggest there is any such prejudice in this case. Another matter to note is that there is no appeal from an order either allowing or refusing to allow an extension of time under s.477: s.476(3) of the Act.

Consideration

Delay

1. I will deal first with the extent of delay and the reasons for the delay.  In his affidavit, the applicant said that he was told for the first time that his review before the Tribunal had been refused in the second week of January 2015. By email dated 19 January 2015 from the applicant to the Tribunal, the applicant indicated that he was going to attend court to have his “refugee visa” reviewed and requested the recording of his Tribunal hearing in order to provide to his lawyer.

2. On 30 January 2015, the applicant’s lawyer called the Tribunal to say that he had never received the Tribunal’s decision. In his affidavit, the applicant says that he first received the Tribunal’s decision on 10 February 2015, and he said that although he had a legal firm to assist him during the Tribunal review, that was without a fee, and that he did not have any work or income to find a private lawyer to assist him. It was in those circumstances that it was not until 25 February 2015 that the applicant made his application for review to this Court.

3. I am satisfied in those circumstances that the applicant has provided a reasonable excuse for the delay, and I find further that there was not any significant delay and that this weighs heavily in favour of extending the period for the applicant to apply for review of the decision. I turn, then, to consider the merits of the application. 

Merits

Ground 1

1. The first ground in the application is essentially that the Tribunal did not consider the fact that if he were to return to Sri Lanka and be placed in an overcrowded jail, the authorities would be intentionally inflicting harm upon him because they would have known of the existence of the overcrowded and unpleasant jail. That ground seeks to raise one of the criteria for the grant of a protection visa, namely, sub-s.36(2)(aa) of the Act, which requires that there, amongst other things, be a real risk that the non-citizen will suffer significant harm.

2. Significant harm is defined by s.36(2A) to include cruel or inhuman treatment or punishment or degrading treatment or punishment. Cruel or inhuman treatment or punishment is in turn defined in s.5 of the Act to require that there be an intentional infliction of harm or pain or suffering, whether that be by act or omission.

3. One of the bases upon which the applicant claimed that he might be harmed on return to Sri Lanka was that he had left Sri Lanka illegally and would be punished under the law of Sri Lanka for having done so when he returned there. The Tribunal considered that claim, and while accepting on the basis of country information that he would likely be questioned by the police and possibly charged under the law of Sri Lanka and that he might be taken to the courts and potentially remain in police custody for up to three or four days, that did not amount to either serious harm, or significant harm, within the meaning of the Act. Part of its findings, at [43] of its reasons, was that the process of penalising the applicant for illegal departure would not amount to cruel or inhuman treatment or punishment, or to degrading treatment or punishment because it found no evidence of an intention on the part of the authorities or anyone else to inflict harm.

4. In that way, in my view, the Tribunal, contrary to the applicant’s argument, did consider whether there would be intentional infliction of harm and, for that reason, in my view, ground 1 is unlikely to succeed. 

Ground 2

1. Ground 2 relies upon a decision of North J on appeal from a decision of this Court, in a decision called WZAPN v Minister for Immigration & Border Protection (2014) 229 FCR 477. The effect of that decision was that even a short period of detention that threatens an applicant’s liberty will fall within the scope of serious harm in the Act. For that reason, his Honour found that the Tribunal was wrong to consider the type of detention. There are two difficulties with the applicant’s ground. The first is that appeal from the decision to the High Court was upheld in June of this year. In other words, the High Court found that North J was wrong. The second difficulty is that in this case, which was not the case in North J’s matter, the Tribunal found that the laws in Sri Lanka by which the applicant would be punished were laws of general application. In plain terms, that means that even if the determination amounted to serious harm, it would not satisfy the criteria for the visa, and that is because serious harm must be inflicted for a particular reason in order for somebody to be a refugee.

2. Where a law is of general application, it usually means that it is applied without any such reason. For those reasons, as the law currently stands, the second ground would not succeed. I say “as the law currently stands” because at the time that the applicant lodged his application in February of this year, the High Court had not yet either heard the appeal or made its decision on that appeal, and so the principal difficulty with the ground did not exist.

Ground 3

1. The third ground in the application is that the Tribunal did not comply with s.424AA of the Act. The applicant explained that ground, as he understood it today, as being that the Tribunal made its decisions without hearing his side of the story. If that were right, that would amount to a breach of s.425 more likely than s.424AA. However, the evidence before me is that the applicant attended a hearing held by the Tribunal on 14 November 2014, and the Tribunal raised with the applicant at that hearing a number of issues that arose on the review. For that reason, I cannot see that there was any breach of s.425 of the Act.

2. The obligation under s.424A of the Act is, in essence, the obligation to put adverse material to the applicant for his comment. I will return to a qualification to that obligation. Ordinarily, the obligation is performed in writing. However, s.424AA allows the Tribunal to do so orally at the hearing. Thus, the real question is whether there was any obligation under s.424A. The qualification to that obligation under that section that is relevant to these proceedings is that the section does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member. Generally speaking, this means that information about the country circumstances in Sri Lanka is not captured by any obligation under s.424A.

3. In this case, it appears from the Tribunal’s reasons that the only relevant information it relied upon adversely to the applicant fell within that exception, that is, it was about the country circumstances in Sri Lanka rather than specifically about the applicant. For that reason, in my view, s.424A did not apply to the Tribunal, and there was no error by the Tribunal in not complying with the procedure under s.424AA.

Matters raised at hearing

1. At the hearing today, the applicant raised a number of matters in addition to the grounds raised in the amended application. First, he said that the Tribunal did not believe that his uncle had died and also found that if the applicant’s father had had problems in Sri Lanka, he would have been arrested. 

2. The issues relating to the applicant’s uncle and father arose in this way.  The applicant claimed that his uncle had been engaged in considerable efforts to get his family’s land back from the army and that, as a result of these efforts, in April 2012 he was electrocuted and killed. He claimed that his father attended the funeral of his uncle, and that on the way back from the funeral he was abducted by people in a white van.  He was interrogated and accused of being a supporter of the LTTE and threatened with death. The applicant said that his father escaped to Dubai in fear of being abducted again. 

3. The Tribunal accepted that the applicant’s uncle died by electrocution but not because of his involvement in the campaign for the family’s land.  It also found that the applicant had made up the story about his father’s abduction by people in a white van and said that it was “additionally confident” about that finding “because of the number of times the father submitted himself to the scrutiny of authorities on the way to and from Dubai”: [25] of the Tribunal’s reasons.

4. The Tribunal gave reasons for each of those findings, and it appears that the applicant’s complaint is simply one that it should not have made those findings. That is a complaint that goes to the merit of the Tribunal’s decision. However, even if that complaint were correct, this Court does not have jurisdiction to deal with it. The Court’s jurisdiction is limited to finding jurisdictional error. In very broad terms, that means that the Court must find serious error in the Tribunal’s decision before it can make the orders that the applicant seeks.

5. For those reasons, I consider that each of the grounds raised in the amended application, and today orally before me, do not have any significant merit, and that weighs against the extension of time to bring these proceedings. 

6. In determining whether such an extension is in the interests of the administration of justice then, I must weigh the fact that there was only a small delay in bringing the proceedings for which there has been a reasonable excuse, against the prospect that each of the grounds raised is unlikely to succeed in a substantive hearing. 

7. I also consider the fact, as I have mentioned, that there is no appeal from a decision refusing to extend time. On balance, given the absence of an appeal and the small delay, and the reasons given for the delay, I consider that it is in the interests of the administration of justice that an extension of time be given and I order that the period for bringing an application under s.476 be extended up until 25 February 2015.

8. When this matter was listed for the first time I made orders setting the matter for hearing today on the application of the time for bringing the application. However, the matter was also listed, if necessary, for a final hearing on the matter. On the basis of that order, I will, subject to what the parties say, deal with the matter now as though it had been fully argued before me. 

Conclusion

1. The outcome will, for the reasons that I have given in respect of each ground in the amended application and the matters raised orally by the applicant, be that the application be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  11 August 2015