Aec19 v Minister for Immigration
[2019] FCCA 2571
•12 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AEC19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2571 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – show cause application filed over a year late – consideration of an extension of time, which was refused. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5J, 36, 477 |
| Cases cited: BVG16 v Minister for Immigration [2018] FCA 1483 |
| Applicant: | AEC19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 80 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 12 September 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Davyskib of Minter Ellison |
INTERLOCUTORY ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 80 of 2019
| AEC19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTIULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 15 November 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The applicant filed his judicial review application on 15 January 2019. That was some 391 days outside the period prescribed by s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks an extension of time pursuant to s.477(2) of the Migration Act.
The Minister’s submissions deal with the factual background in this matter.
The applicant is a Tamil Muslim male from Vavuniya, Northern Province, Sri Lanka[1] who arrived in Australia by boat on 1 September 2012.[2]
[1] Court Book (CB) 35
[2] CB 42
On 12 September 2016, the applicant applied for a temporary protection visa, assisted by a migration agent.[3]
[3] CB 20–68
Form 866C submitted as part of the applicant's temporary visa application application provided the applicant's current residential address (Q 37) as an address in Benalla (the Benalla address).[4] The applicant's “current postal address” was recorded as “same as residential”, that is, the Benalla address.[5]
[4] CB 38
[5] CB 38
In support of his temporary visa application, the applicant submitted a statement, in which he set out his claims for protection.[6] The applicant claimed to fear harm because of a shoe-making business that he and his family operated, which served people who had been affected by the war and had “legs missing or other deformities”.[7] The applicant alleged that they also made braces for people that had prosthetic limbs. The applicant claimed that his father opened the first shop in the Vavuniya district, and that in 2010, his father opened a subsequent store which his brother, L,[8] and he ran in Killinochchi.[9]
[6] CB 64–68
[7] CB 64
[8] the name has been anonymised
[9] CB 64
The applicant claimed that as a result of the shoe-making business, he and his family experienced incidents involving threats and torture from the Criminal Investigation Division (CID). The applicant alleged that L attempted to flee to Australia in July 2012, but that his boat did not make it and that L subsequently resided with their elder brother, M,[10] in Batticaloa.[11]
[10] the name has been anonymised
[11] CB 67
The applicant claimed that as a result of the shoe-making business, he was suspected of being a member of the Liberation Tigers of Tamil Eelam (LTTE), giving jobs to former LTTE members, and having former LTTE customers. The applicant alleged that Sri Lankan authorities, such as the CID, the Sri Lankan Army (SLA), or paramilitary groups, would harm him if he returned to Sri Lanka, on account of his Tamil ethnicity, his imputed political association with the LTTE, and on account of his illegal departure from Sri Lanka.[12]
[12] CB 68
On 18 April 2017, a delegate of the Minister refused the applicant a temporary protection visa.[13] Notification of the delegate's decision was sent to the applicant's migration agent by registered post.[14]
[13] CB 129–149
[14] CB 129, 132, 150
The delegate made adverse credibility findings, and found the applicant's claims regarding being detained as inconsistent and implausible.[15] The delegate accepted that the applicant and his family operated a business selling shoes and braces for people with deformed or missing limbs. The delegate found the applicant's claims regarding L’s travels between Sri Lanka and Qatar on false identities, far-fetched. The delegate did not accept that the applicant or L were of interest to the CID for any reason before departing Sri Lanka, and did not accept that they were ever detained by the CID.[16] The delegate “found that the applicant was of no interest to the Sri Lankan authorities for any reason when he left the country”,[17] and was not satisfied that the applicant was owed protection obligations under ss.36(2)(a) or (aa) of the Migration Act.[18]
[15] CB 138
[16] CB 138
[17] CB 143
[18] CB 144–145
The delegate's decision was referred for review by the Authority.[19]
[19] CB 151–154
On 19 April 2017, the Authority notified the applicant that the matter had been referred to it for a review.[20] Notification of the acknowledgement of referral was sent to the applicant by post to the Benalla address.[21]
[20] CB 185–198
[21] CB 185
On 15 November 2017, the Authority affirmed the delegate's decision not to grant the applicant a temporary protection visa. Notification of the Authority's decision was sent to the applicant by post to the Benalla address.[22]
[22] CB 202
Authority decision
The Authority made the following relevant findings:
a)it did not accept that the shop employed former LTTE members, because this claim was not raised in the applicant's arrival interview;[23]
[23] CB 211, at [24]
b)it accepted that L had tried to travel by boat to Australia in mid-2012 but the boat had returned to Sri Lanka.[24] Relying on country information that was in the referred material, the Authority accepted that L returned to Sri Lanka and was in all likelihood questioned by Sri Lankan authorities, and possibly fined;[25]
c)it did not accept that L had to report frequently to the court or that the family paid a bribe to take his name off the court list, and found that this was one example of the applicant fabricating his account as he went along;[26]
d)it did not accept that L travelled to Qatar and returned to Sri Lanka on fraudulent documentation;[27]
e)it found that the applicant was not of interest to the authorities as the applicant's claims stemmed from L and the family's shoe shop, and the Authority had found L to be of no interest to authorities;[28]
f)it did not accept that the applicant had been in hiding due to fear from authorities, as his 2012 interview and temporary protection visa application did not indicate that he had been in hiding or that he had moved around a lot;[29]
g)the Authority considered the post interview letters, untranslated summons documents, photographs and maps, however placed no weight on them for the reasons it gave, including on account of country information about the prevalence of fraudulent documents;[30]
h)it did not accept that the applicant or L were taken to the camp, questioned, harmed or threatened by the CID or that they had been summonsed, or that he and his family were of any interest to authorities;[31]
i)it accepted that the family may have had to pay taxes to the LTTE during the war but found that this was not uncommon, and did not accept that the authorities had any interest in the applicant or his family because the shoe shop they ran may have included former LTTE members[32] or because they owned the shop;[33]
j)it was satisfied that the applicant did not face a real chance of serious harm due to his illegal departure, now or in the reasonably foreseeable future if he returned to Sri Lanka;[34] and
k)having regard to all of the evidence before it and considering the applicant's claims both individually and cumulatively, the Authority was not satisfied that the applicant had a well-founded fear of persecution from anyone under s.5J(1)(a).[35]
[24] CB 211, at [25]
[25] CB 211, at [26]
[26] CB 211, at [27]
[27] CB 211, at [28]
[28] CB 211, at [29]
[29] CB 211–212, at [30]
[30] CB 212, at [32]-[33]
[31] CB 212, at [35]
[32] at [41]
[33] CB 213, at [43]
[34] CB 217, at [73]
[35] CB 217, at [75]
The Authority was not satisfied that the applicant met the refugee criterion under s.36(2)(a) of the Migration Act,[36] or complementary protection criterion under s.36(2)(aa) of the Migration Act.[37]
[36] CB 217, at [75]
[37] from CB 217–219, at [76]–[91]
The current proceedings
The applicant continues to rely upon his show cause application as filed. The grounds in support of the extension of time are:
1.The IAA did not inform the Applicant of the decision to the Applicant's new address.
2.The delay is caused by the IAA.
3.I have attached the IAA envelope.
The proposed grounds of judicial review are:
Ground 1
IAA fell into jurisdictional error.
Particulars
Authority did not apply the well-founded fear test to Applicant's situation as Applicant was previously suspected of LTTE involvement because of his acts for the LTTE.
Ground 2
IAA made a jurisdictional error.
Particulars
Authority did not take into account the country situation as LTTE suspects are still persecuted.
The relevant principles concerning the consideration of an extension of time are set out at the Minister’s submissions, which I accept.
The relevant factors in deciding whether an extension of time should be granted, pursuant to s.477(2) of the Migration Act, include:
a)the extent of the delay;
b)the explanation for the delay;
c)any prejudice a respondent might suffer because of the delay; and
d)the merits of the proposed application.[38]
[38] see, eg Mohammed v Minister for Immigration (2015) 231 FCR 243 at [15] per Perry J
In considering the request for an extension of time I have before me as evidence the applicant’s affidavit filed with his show cause application, the court book filed on 8 March 2019 and the submissions of the applicant and the Minister filed on 2 September and 5 September respectively.
The Minister also read the affidavit of Adrian Patrick Downey made on 5 September 2019. Annexed to that affidavit is an extract from the Minister’s Department’s records of changes of address of the applicant.
The delay in this matter was significant. In his written application the applicant seeks to put the blame for the delay on the Authority. That assertion does not bear scrutiny. It appears from the court book that the Authority’s decision was sent to the applicant on or about 15 November 2017, at his address in Benalla.[39] The affidavit of Mr Downey establishes that the Benalla address was the most recent address disclosed by the applicant at that time.
[39] CB 202
The envelope annexed to the applicant’s affidavit simply provides evidence that in January of this year a further copy of the decision was sent to the applicant at his now current address. The decision and notification letter, apparently included in that envelope, are both stamped as copies. The applicant asserted from the bar table that he did not receive the authority decision until the copy was sent to him, apparently at his request in January this year. That may be true, but there is no evidence of the Authority decision being misaddressed in 2017. Neither is there any evidence of a complete failure of notification.
I am prepared to accept that while the Authority’s decision was sent to the applicant at his then current address in November 2017, for some reason the applicant did not, in fact, receive it. The applicant told me from the bar table that the problem only came to his attention when, in early January this year, he went to renew his Medicare card and found that his bridging visa had expired. That establishes that the applicant took no steps to enquire about the Authority decision in the intervening period. It also appears that the applicant was left unmolested by the Minister’s Department following the expiry of his bridging visa.
The circumstances provide a partial, but not entirely satisfactory, explanation for the applicant’s delay in coming to court. The Minster concedes that there would be no prejudice if an extension of time were granted. The question then is whether there is sufficient merit in the proposed grounds of review to support an extension of time. In my view, the proposed grounds of review lack merit.
I invited oral submissions from the applicant about the Authority decision and it was apparent that he challenges the merits of that decision. Simple disagreement with the Authority’s reasoning and decision, however, is not a sufficient basis to pursue judicial review. I agree with the Minister’s submissions concerning the proposed grounds of review.
The two grounds of review, properly understood, express discontent with the Authority's decision, and are incapable of establishing any jurisdictional error. The proposed application has no reasonable prospects of success which bears upon the consideration of an extension of time.[40]
[40] MZABP v Minister for Immigration (2015) 242 FCR 585; [2015] FCA 139 at [62]–[63] per Mortimer J; BVG16 v Minister for Immigration [2018] FCA 1483 at [17] per Burley J
Ground 1 expresses the applicant's discontent with the Authority's findings that the applicant was not owed protection. The Authority expressly considered the applicant's claims to fear harm on the basis of being suspected of involvement with the LTTE.[41] The Authority did not accept that the applicant had any anti-government or pro-LTTE profile,[42] or that the applicant had been a suspected LTTE member.[43] The Authority did not accept that the applicant was of any interest to authorities.[44]
[41] CB 213, at [40]
[42] CB 214, at [45]
[43] CB 214, at [48]
[44] CB 214, at [52]
The Authority's findings were open to it for the reasons it gave, and it correctly applied the test under both ss.36(2)(a) and (aa) of the Migration Act.
In relation to Ground 2, which alleges that the Authority failed to consider “the country situation as LTTE suspects are still persecuted”, the Authority expressly considered independent country information relating to LTTE links.[45] The Authority referred to Department of Foreign Affairs and Trade country information,[46] and recorded that thousands of LTTE members had been arrested, detained and sent to rehabilitation centres (but subsequently released), since the end of the conflict. The Authority was not satisfied that the applicant had any profile of interest.[47] The Authority considered the applicant's claims, and made findings that were open to it, including on account if country information before it.
[45] CB 214, at [49]–[52]
[46] CB 214, at [51]
[47] CB 214, at [51]–[52]
The applicant relies on a written outline of submissions filed on 2 September 2019. Those submissions do not establish any jurisdictional error, and properly understood, seek to re-agitate the applicant's claims for protection, and seek impermissible merits review.
Insofar as the applicant alleges that the Authority “took irrelevant consideration into account”, the applicant has not provided particulars in relation to this assertion. As noted by Griffiths J in Sachin v Minister for Immigration[48] at [14]:
For a matter to constitute an irrelevant consideration, the consideration must be one that, either expressly or by implication, a decision maker is forbidden or prohibited from taking into account.
[48] [2017] FCA 527
I conclude that the interests of the administration of justice do not require the granting of an extension of time in this case.
I will order that the extension of time application is therefore refused, with the consequence that the proposed judicial review application is incompetent.
In consequence of the refusal of an extension of time, the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 18 September 2019
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