AGC16 v Minister for Immigration
[2017] FCCA 2407
•3 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGC16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2407 |
| Catchwords: MIGRATION – Application for extension of time pursuant to s.477 of the Migration Act 1958 – whether applicant’s delay satisfactorily explained – whether application has reasonable prospects of success – not in interests of justice to extend time – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.477(2)(b), 422B Administrative Appeals Tribunal Act 1975, s.2A |
| AZAFX v Federal Circuit Court of Australia [2016] FCA 1139 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 |
| Applicant: | AGC16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 37 of 2016 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 12 October 2016 |
| Date of Last Submission: | 12 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 3 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms A.C. Wells |
| Solicitors for the Applicant: | James Swanson |
| Counsel for the Respondent: | Mr D. O’Leary |
| Solicitors for the Respondent: | The Australian Government Solicitor |
ORDERS
The application for an extension of time pursuant to s.477 of the Migration Act 1958 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,326.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 37 of 2016
| AGC16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
By an application filed 5 February 2016, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 21 August 2015. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection visa.
The applicant needs an extension of time in which to bring his application and that extension is opposed by the first respondent.
The applicant asserts that the delay before the filing of his application is explained on the affidavit material and further submits that his application has reasonable prospects of success, and accordingly it would be necessary in the interests of justice within the meaning of s.477(2)(b) of the Migration Act 1958 that time for application be extended.
For the reasons that follow, I do not think that the applicant's explanation for his delay is entirely satisfactory, although I do not regard this as a matter of great significance. Further, I do not think the application has reasonable prospects of success, and accordingly the application for an extension of time will be dismissed.
The Approach to be Adopted
Both counsel agreed that the principles set out in a number of cases, including by Charlesworth J recently in AZAFX v Federal Circuit Court of Australia [2016] FCA 1139 are to be applied. At [9] – [10] her Honour said:
This Court has consistently held that the FCCs satisfaction that the grant of an extension of time is "necessary in the interests of justice" within the meaning of s 477(2)(b) is to be formed having regard to whether the proposed grounds of review have "reasonable prospects of success" or, to use like expressions, are "arguable" or "reasonably arguable" or "sufficiently arguable": (authorities cited omitted). In MZAPB, Mortimer J said at [63]:
…Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
Other considerations to be taken into account in forming the satisfaction referred to in s 477(2) of the Act include the length of the delay in commencing the application, the adequacy of any explanation given for the delay and any prejudice that might be suffered by the respondent, should the extension of time be granted.
It should be noted that the first respondent accepts that there is no prejudice in the event that time is extended.
The Explanation for the Delay
Relevantly for these purposes, the Tribunal handed down its decision on 21 August 2015. The applicant has filed a number of affidavits in respect of what happened thereafter. In his own affidavit sworn 5 May 2016, the applicant noted that he was not represented at the Tribunal hearing on 19 August 2015. He deposed at paragraph 9 that he received a decision by post, but could not read it, but he knew his application had been unsuccessful. He deposed:
I was depressed by this news. I did not know what I could or should do about the decision. I did not know that there were any further legal proceedings that I might bring in order to challenge the decision.
The applicant went on to depose that at the time he was living with his Australian partner and her daughters, and that at about this time his partner became pregnant to him. Given that his child was born on 3 February 2016, albeit by caesarean, it would seem that conception is likely to have been somewhat earlier.
The applicant went on to depose that with the help of his partner's mother, he and his partner's mother started making inquiries, and between August to October of 2015 approached a number of persons and organisations for help unsuccessfully. The applicant deposed that he found out about JusticeNet South Australia from Sister Mary Symonds and completed his application to that organisation on 28 October 2015.
Thereafter, JusticeNet, so to speak, processed the matter and following the receipt of an evaluation the application was lodged on 5 February 2016.
As the first respondent's written submissions point out, the applicant received the decision of the Tribunal by post and knew what its purport was. It is reasonable to suppose that his partner or her mother could have read it out to him. There is no medical evidence to support any finding that the applicant was depressed and unable to attend to his affairs. Furthermore, as was submitted at the hearing, although some of the delay in the application is attributable to the applicant's representatives, JusticeNet, it was at all times his application and the responsibility for the delay is ultimately his.
Taken as a whole, the applicant's explanation is not entirely satisfactory, but by the same token, bearing in mind that there was no application to cross-examine him, I am required to have proper regard to his affidavit material. I do not regard the delay as being a significant factor such as to of itself make an extension of time inappropriate.
Does the Application Have Reasonable Prospects of Success?
Because of the way the applicant's case has been addressed both in the written and oral submissions made it is appropriate to start by looking at what the applicant has actually said from time to time about his claims. In his Irregular Maritime Arrival Entry Interview, at CB10 - 23, the applicant said he left Sri Lanka because (CB18):
I had a lot of problems in Sri Lanka. All my family members worked for the United National Party (UNP). Therefore it is very difficult for us to get a job. Why is it difficult for you to get a job because of the UNP? It is the People’s Alliance (PA) who are in Power. Politicians of this party who are in the village and in our area, they don’t allow us to go for a job. Is the UNP against the PA? It is the opposition party in Sri Lanka.
The answers went on to say, also at CB18:
These are the reasons that lead me to leave Sri Lanka. People come and harass us. What people? When we don’t have money we take loans for people. We have to pay the interest on a definite date. so if we don’t pay on that specific date, they also come and harass us. Do other people harass you? No other people harassing us.
Have any things or incidents happened to you or your family members, your mum or brother? People come and scold us. Who comes and scolds you? Especially the money lender, harassed and verbally abused us.
The applicant then applied for a Protection visa. His statement of claims is at CB52 - 51. This repeated the claim of involvement with the UNP but detailed targeting and harassing by the People’s Alliance Party (“PA Party”) of the applicant. He deposed at CB50 “the supporters of the PA party used to verbally threaten me that they would kill me one day. There were many of them in Negombo and I always felt threatened that if they caught me they would physically assault me. That was why I came to Australia by boat in July 2012.”
The applicant went on at CB51 to express a fear of harm by the Sri Lankan government and supporters of the PA party. The government authority fear arose from his unlawful departure from Sri Lanka and the PA supporters fear emerged implicitly from his UNP activities.
The matter was next considered by a delegate of the Minister and the decision record is at CB95 - 110. The delegate noted that the applicant was born in Negombo and lived with his family before departing Sri Lanka (CB96). The delegate summarised the applicant's claims for protection at CB98 - 99. The summary identified the applicant's activity as a UNP member and resultant targeting and threats from the PA supporters together with his fear of harm from the government because he left Sri Lanka illegally.
The delegate found the applicant's account of events to involve discrepancies and inconsistencies and concluded at CB100:
I am therefore willing to accept that the applicant was involved in low level political activities in Sri Lanka. I accept that he was a supporter of the UNP party and that he was involved in poster campaigns, attended meetings and had worked in the polling booth on at least one occasion.
The delegate accepted that the applicant was threatened by supporters of the UPFA after elections in 2010 but did not accept the applicant's account of the extent of it. Essentially the delegate did not accept that the applicant was at risk as a result of his political involvement because his involvement was at such a low level. The delegate also did not accept that the applicant would face significant harm from the government because of his illegal departure from Sri Lanka.
The applicant next applied for review to the Tribunal.
The Decision of the Tribunal
The Tribunal set out the application for review and the relevant statutory provisions at CB124. At CB125 at paragraph 10 the Tribunal noted the applicant's claims to meet the refugee or complimentary protection criteria as:
(a) his imputed or actual political opinion as a United National Party supporter;
(b) his unpaid debts in Sri Lanka; and
(c) his illegal departure from Sri Lanka and return as a failed asylum seeker.
The Tribunal traversed the applicant's claims as made from time to time and as made at the Tribunal at paragraphs 12 to 30, CB125 - 127, and then set out country information relating to the political situation in Sri Lanka and the question of State protection, together with country information about those returned who had left the country unlawfully. The critical findings made by the Tribunal are at paragraphs [36] - [40], CB129 as follows:
The applicant is from the majority Sinhalese ethnic group. He is not a Sir (sic) Lankan Tamil and does not originate from North Sri Lanka. He has no involvement or association with the LTTE. The Tribunal does not accept the applicant's claims that he did not have recourse to state protection or that state protection was denied to him because of his actual or imputed political opinion and/or involvement with UNP. Looking into the reasonably foreseeable future the Tribunal is satisfied that the applicant will have recourse to state protection in Sri Lanka.
The Tribunal does not accept the applicant's evidence that he was an active supporter of the UNP who organised meetings and was specifically selected to work in polling stations for the UNP during the elections held in 2010 or any other time in Sri Lanka. The Tribunal accepts however that the applicant is a low level supporter of the UNP in his home area and that he may have attended meetings and put up electoral posters.
The Tribunal found the applicant's evidence of threats and harassment from his political opponents vague and lacking in detail. Having rejected the applicant's evidence that he was an active supporter of the UNP and was involved in the elections the Tribunal does not accept the applicant was attacked and threatened by member of opposing political parties in Sri Lanka because of his actual or imputed political profile in Sri Lanka.
Having regard to the applicant’s profile as an ordinary UNP supporter and recent country information detailed above, the Tribunal concludes that there is no real chance the applicant would be persecuted by the members and/or supporters of the PA, UPFA and/or SLFP or any other party opposed to the UNP if he returns to Sri Lanka now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant's fear of harm because of his actual or imputed political opinion in Sri Lanka is well-founded.
For the same reasons, the Tribunal also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm
It should be noted that at paragraph 25, CB126, the Tribunal had earlier traversed the applicant's assertion that those who were harassing him were supporters of the politicians Nimal Mansa, Dayan Lansa and Sarath Gunarathen who the applicant claimed were members of the UPFA. The Tribunal’s factual finding therefore, following as it did later in the decision, must be taken to have addressed the applicant's claims both made in general terms and as to those persons specifically.
Against this background I come the proposed grounds of application.
It is convenient to the take the applicant's grounds in the order in which counsel addressed them in oral submissions.
Counsel confirmed that ground 1 in the amended application is still pressed. Very properly, however, she conceded that the assertion that the Tribunal’s review was not fair and just as required by s.2A of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) was an overarching complaint necessarily put at a level of generality.
Put shortly, however, I accept the submission of counsel for the first respondent that s.422B of the Migration Act is a comprehensive statutory recitation of the procedural fairness requirements involved in the Tribunal’s hearing and that the AAT Act is simply not applicable.
The next matter addressed was the alleged denial of procedural fairness constituted by the Tribunal’s failure to ask the correct question. This matter is dealt with at paragraphs 16 - 24 of the applicant's written submissions.
It was submitted that the Tribunal assumed that the result of the election discussed with the applicant at the hearing meant that there was no risk to the applicant as a UNP member throughout Sri Lanka. It was submitted that this was the wrong question and that the Tribunal should have considered the risks to the applicant in Negombo. Once the Tribunal had introduced the election result as a material matter, the Tribunal failed to consider what would flow from it. It was submitted that the claim before the Tribunal and, indeed, before the delegate was clear. Reference was made to CB100, where the delegate recorded threats from Nimal Mansa, Dayan Lansa and Sarath Gunarathne in this regard.
The court was taken to the transcript of the hearing, annexed to the affidavit of James Howard Swanson sworn 6 May 2016, where the applicant had referred to these three politicians and the fact that their supporters might kill or harm him. The applicant had claimed that the police would not provide UNP supporters with protection (paragraph 34 of the Tribunal’s decision, CB128).
Counsel also pointed to the reference at page 15 of the transcript of the hearing where the applicant said:
Actually in the city of Negombo the people in opposition, in parliament, that’s not a problem because they’re fine. It’s the people below them that creates the problem.
It was submitted that the Tribunal had assumed that the risk of persecution had ended because of the election result but that in the circumstances the applicant's real claim, namely to face risk of harm in Negombo from the people he had identified, was not logically affected by the election result. In short it was submitted that the applicant's claim as pressed was simply not examined by the Tribunal.
The difficulty with this argument, as pressed by the first respondent in oral submissions, is that the Tribunal simply did not accept that the applicant had had any sort of profile as a UNP member and had not, in fact, been threatened as he alleged. The reality is that the Tribunal was aware of the applicant's claims to fear the three politicians he had identified and their supporters but simply did not accept those claims. This was a finding of fact which is, as has been pointed out, the Tribunal’s role par excellence.
The next asserted error is addressed at paragraphs 25 - 49 of the applicant's written submissions. It was submitted that the Tribunal’s decision was unreasonable. There were two parts to this assertion. The first was that the Tribunal was in effect focused on a particular outcome. It was submitted that the Tribunal knew the applicant was unaware of the election result and asked specific questions that the Tribunal knew the applicant could not answer. It was submitted that it was unreasonable for the Tribunal not to adjourn to give the applicant time to consider his position.
The other subset of this assertion was that the Tribunal failed to make easy inquiries about a critical matter. The obvious inquiry was about the three persons the applicant had nominated. In this regard counsel sought to rely upon a further affidavit of James Howard Swanson sworn 26 September 2016. Paragraph 4 of this affidavit was not the subject of objection and tendered a report that had been available before the Tribunal about the election result. It also set out in paragraph 3 a number of press and other reports about the three persons to whom the applicant had referred. These extracts were objected to but in my opinion are properly admissible simply to show, as counsel for the applicant submitted was the case, that it is not particularly difficult to find material about these three politicians. The press reports, if true, would suggest that they are not very attractive individuals.
An examination of the transcript of the proceeding from page 14 onwards shows that the Tribunal raised with the applicant the election results then underway in Sri Lanka. The applicant said he was aware a little bit in response to the question as to whether he had been monitoring the election result. The Tribunal asked at page 14 “Well, you are telling me that you are a supporter of the UNP. Why haven’t you taken greater interest in your party?”
The Tribunal member expressed surprise at the applicant's lack of interest in the election and asked if the applicant was happy at the result noting that he did not look happy. The Tribunal member said at transcript page 15 “But that’s not what you told me. I find it very interesting that when I asked you that then I asked you about it, you gave me very little information. You knew nothing about it. If you were an active member, this is an important day in your life. I doubt, I question, your commitment to the UNP.”
The applicant replied “Actually, yes, I am actually happy that they won but at the same time, I am in lots of danger and for that reason, if I need to go back (inaudible).” The Tribunal member replied “But you can’t have it both ways. You’ve got to be honest. If your party is losing, you’re not happy. If your party wins, you’re not happy? What is the problem?”
I do not think that the Tribunal acted unreasonably in putting the questions to the applicant that the Tribunal member did. The applicant was claiming to fear persecution on account of his activities as a member of the UNP. As it happened, material was readily, albeit recently, available to suggest that the UNP had actually won the election in Sri Lanka or at the very least achieved a result that enabled it to govern in coalition. The Tribunal’s questions to the applicant, who evinced in his answers a lack of interest in the outcome of the election and a lack of awareness of it, seem entirely natural. I do not think there was anything improper in the Tribunal member traversing his doubts about the applicant's involvement with the UNP in this fashion. Indeed, I agree with counsel for the first respondent that a failure to have alerted the applicant to these difficulties might well itself have been said to give rise to unfairness.
Further, and dealing with the alleged failure to make an inquiry about an obvious and critical matter, this submission proceeds on a false footing in my opinion. The Tribunal simply did not believe that the applicant had any significant profile as a UNP supporter or, indeed, had any significant activity as a UNP supporter and therefore did not face danger on that basis. True it is that the applicant had nominated the three particular politicians as the source of this fear (and I note that they appear to be relatively notorious so the applicant's awareness of them is unsurprising) but the fact is the Tribunal simply did not accept the applicant's claims. The Tribunal was under no obligation to make further inquiry about the three individuals concerned because it had already determined that the applicant did not face harm from them.
In summary, I do not think that the Tribunal’s decision can be said to be unreasonable in the senses pressed by the applicant. I note, as I think I did during the hearing before the court that the way in which the Tribunal member expressed himself to the applicant from time to time reads unattractively. In my opinion some of the Tribunal member’s remarks were put in a fashion that might be thought to belittle the applicant unnecessarily. Nonetheless I note also that there is no ground of bias pressed whether actual or imputed, and while, as I say, I find some of the transcript unattractive to read, I think the absence of a bias ground is sensible in any event.
The final matter pressed is dealt with at paragraphs 50 - 53 of the applicant's written submissions. It is put that the question of complementary protection was not fairly dealt with. The applicant at the hearing, it was submitted, was not given an opportunity to respond to information presented to him relevant to his claim for complementary protection. That was the claim at transcript page 13 that he feared being placed into custody in jail because he left Sri Lanka illegally. The Tribunal member responded:
So let’s talk about that. It’s an offence in Sri Lanka to depart without proper documents and from an unauthorised port. So that it’s likely when you return, you authority will charge you. Those laws apply to everyone equally – to Sinhalese, to Tamils, to everyone equally. The delegate’s decision refers to that information about what happens to people when they return after having departed Sri Lanka illegally. There’s a range of penalties which can be imposed, from 5 years gaol maximum to fines of up to 200,000 Sri Lankan rupees. Most cases, people are fined. It’s people who are of particular interest to the authorities, people who are involved in the LTTE, people who have a profile that’s anti-government, people who have been involved in people- smuggling, people who are on a government’s watch list, they’re likely to be people who are scrutinised at the airport and they’re likely to run into trouble with the authorities, depending on their particular circumstances. You are of the Sinhalese majority ethnic group, you are not Tamil, you are not from north Sri Lanka. You don’t fit into a profile that would attract attention from the authorities. Your evidence about your political involvement is at the low level and it’s not something that would be a threat to the government of Sri Lanka. So you’re not a member of any Tamil separatist group?
The applicant responded “no” and confirmed also that he had no criminal convictions. The Tribunal member continued:
So, in those circumstances, looking at your profile, you will simply be charged under the legislation and fined. So, from that point of view, I don’t accept that your profile would result in you suffering persecution as a failed asylum-seeker returning back.
It was submitted that this extract, which the applicant described as a monologue on the Tribunal member’s part, meant that the applicant was not invited to give evidence and present argument as the Act required.
While it is clear from the extract to which I have referred that the Tribunal had a clear view about what would happen to the applicant upon his return to Sri Lanka, I note once again that no allegation of bias is pressed. I note that the Tribunal set out at paragraph 47 (CB130) country information that fully supported the matters the Tribunal had asserted to the applicant at the hearing. Given that the applicant had already articulated the basis of his fear, namely his irregular departure from Sri Lanka, and given that the Tribunal had comprehensive country information available to it (and which I would infer might well be known to the Tribunal in a general way in any event, because the Tribunal itself raised it so readily) in my view any absence of opportunity on the part of the applicant to respond is really immaterial.
Conclusion
It should be noted that the authorities earlier referred to about the nature of the conduct of hearings for extensions of time make it clear that this is not the hearing of the substantive application. It involves an assessment as to whether or not the applicant’s application has reasonable prospects of success. In view of the difficulties I have itemised with the various claims the applicant has made, I simply do not regard the applicant’s prospects of success as being sufficiently good that it is necessary in the interests of justice to extend time. As I have indicated, although I repeat again it is not in the scheme of things a major matter, the applicant’s explanation for his delay is not entirely satisfactory. Moreover his chances of success are in my view remote. The application for an extension of time will be dismissed with costs.
It should finally be noted that this matter was delayed pending the decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 (“SZTAL”) (decision handed down 6 September 2017). The matter was thereafter listed for telephone mention on 15 September 2017, when both parties indicated that they did not wish to make further submissions. Given the nature of the dispute in SZTAL, and more particularly the outcome, this disinclination is entirely understandable.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 3 October 2017
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