AGL21 v Minister for Immigration, Citizenship & Multicultural Affairs

Case •

[2024] FedCFamC2G 750

•

21 August 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

AGL21 v Minister for Immigration, Citizenship & Multicultural Affairs [2024] FedCFamC2G 750

File number: MLG 176 of 2021
Judgment of: JUDGE RILEY
Date of judgment:  21 August 2024
Catchwords: MIGRATION – Refugee Review Tribunal – protection visa – extension of time – six year delay – inadequate explanation for delay – the substantive application having no reasonable prospect of success.
Legislation: Migration Act 1958 s.477
Division: Division 2 General Federal Law
Number of paragraphs: 38
Date of hearing: 9 May 2024 
Place: Melbourne
Advocate for the Applicant: In person
Solicitor for the Applicant: None
Solicitor Advocate for the First Respondent: Joseph McDonald
Advocate for the Second Respondent: No appearance
Solicitor for the First and Second Respondents: Clayton Utz

ORDERS

MLG 176 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AGL21

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE RILEY

DATE OF ORDER:

21 AUGUST 2024

THE COURT ORDERS THAT:

1.The application for an extension of time under s.477(2) of the Migration Act 1958 filed on 5 February 2021 be refused.

2.The applicant pay the first respondent’s costs of the proceeding.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

.

REASONS FOR JUDGMENT

JUDGE RILEY:

INTRODUCTION

  1. This is an application for an extension of time in which to apply for a review of a decision made by the Refugee Review Tribunal. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

  2. The applicant is a Sri Lankan citizen who arrived in Australia without a visa by boat. He lodged an application for a protection visa on 5 December 2012 with the assistance of lawyers. He said that he feared harm from the Sri Lankan Army as a Tamil Christian and due to his imputed profile as a supporter of the LTTE.

  3. Applications for review are required to be filed within 35 days of the date of the decision, unless the court extends that time in the interests of the administration of justice: s.477 of the Migration Act 1958.

  4. In considering whether to extend time, the court usually considers:

    (a)the length of the delay;

    (b)the reasons for the delay;

    (c)any prejudice to the Minister; and

    (d)the prospects of success of the underlying application.

    MATERIAL RELIED UPON

  5. The applicant relied upon:

    (a)his application filed on 5 February 2021 (“the application”); and

    (b)his affidavit affirmed on 29 January 2021.

  6. The Minister relied upon:

    (a)his response filed on 24 February 2021 and amended on 2 September 2022;

    (b)the court book filed on 2 October 2023;

    (c)his written submissions filed on 23 April 2024; and

    (d)his bundle of authorities filed on 9 May 2024.

    THE EXTENT OF THE DELAY

  7. The Tribunal’s decision on the review was dated 19 January 2015. The applicant filed the application to this court on 5 February 2021. That was about six years late, or 2,174 days.

    THE REASONS FOR THE DELAY

  8. In the application, and in his affidavit in support, the applicant provided the following explanation for the delay in filing his application:

    a. An application was made for a Protection Visa (Class XA) visa on my behalf on 5 December 2012, by the lawyers provided by the Australian government.

    b. That the Department made a decision to refuse my application on 17 October 2013.

    c. That this decision was reviewed by the RRT and on 19 January 2015, the RRT affirmed the decision not to grant me a protection visa. I never received a copy of this decision until months after the decision was made.

    d. I do not speak, read or write English and my understanding of the English language is best described as being very poor.

    e. My understanding was that the lawyers handling my case would put in an appeal, however this was never done. I do not have many friends and so I was completely unaware of the procedure, as I am a simple man who does not know the law and I had no one to help me advance my case. There was no one who could give me advice, as lawyers cost money and I had no money. So I did nothing.

    f.         That I found out that I was illegal and I was shocked by this allegation.

    g. That I then sought legal advice and I have made this application as soon as possible and I believe that I have a case to argue and I say that an extension of time will not be prejudicial to the interests of the Respondents.

  9. At the hearing before this court, the applicant provided the following additional explanation for the delay in filing his application:

    … in 2005 [he probably meant 2015], I was working with an NBN organisation. … I cannot read or neither understand what is written in anything. So when I approached my employer when my application was rejected, they told me that I should seek the help of a lawyer. And after some time I was unable to get a lawyer for me and the lawyer was not organised for me … [Tr.5,19-23].

    …

    Since … my application was rejected, the company has suspended me from work, and thereafter, I went through a … severe mental depression. Immediately after that, my wife also left me. That aggravated my situation and that put me in a state where I could not further concentrate on these matters. And that one, that is the reason for me not attending to this one on time. It got prolonged and prolonged. I am apologising to you, your Honour, for not applying in – on time. [Tr.5,27-33].

  10. In his written submissions filed on 23 April 2024, the Minister said that:

    17. The delay of 2209 days [actually, 2,174 days, the Minister has counted from the date of the decision] has not been adequately justified by the applicant such as to warrant the grant of an extension of time. In Tran v MIBP,5 Wigney J noted that “[i]n general the longer the delay, the more persuasive the explanation needs to be”.

    18. The extent of the delay is extreme. For comparison, this Court has held that a 54 day delay is likely to be fatal to an application for an extension of time where there is no reason for the delay: WZANW v MIAC [2009] FMCA 1075 at [28]. The present delay is fatal to the applicant's application as the applicant has not provided an acceptable explanation.

    19. The applicant's extension of time application outlines that the applicant ‘never received a copy of [the Tribunal's] decision until months after the decision was made’: CB 330. This reason cannot be sustained because, first, being notified ‘months’ after the decision does not explain the 2,209 days delay. Second, for the purposes of the Act, the Tribunal sent a copy of its decision to the applicant by email in accordance with ss 441A(3) and (5) of the Act. The Tribunal’s decision was taken to be received at the end of the day it was transmitted: s 441C(5).

    20. The applicant submits that he expected his lawyers to lodge the appeal but they did not. This claim is without evidence and the Minister submits it is neither persuasive nor does it excuse the obligation on the applicant to prosecute his own case.

    21. The applicant further describes the following as reasons for delay, all of which have been held to not be unacceptable reasons by the court: insufficient funds to engage a lawyer;6 a lack of understanding of the court processes to apply for judicial review;7 and poor English skills.8

    FN 5:[2014] FCA 533, at [38] (Wigney J).

    FN 6:CTY15 v MIBP [2015] FCA 1354 at [6] (Perry J).

    FN 7:SZSDA v MIAC (2012) 135 ALR 17 at [38] (Foster J).

    FN 8:WZAUG v MIBP [2018] FCCA 771 at [28] (Judge Lucev).

  11. It appears from CB283 that the Tribunal’s reasons for decision were sent to the applicant’s lawyers rather than himself. The letter at CB284 is addressed to the applicant personally, but it does not contain a street address or email address for the applicant, so there is no reason to suppose it was sent to him directly. The letter at CB283 was sent to the lawyer’s correct fax number, as stated in the application to the Tribunal. The applicant did not formally notify the Tribunal of a change of address. Consequently, it appears that the Tribunal sent the reasons for decision to the required recipient at their correct address.

  12. The applicant did not explain why he did not get the reasons for decision for “months”, when he had a lawyer acting for him. Even if that is true, there was still a delay of five and a half years.

  13. The applicant claimed that he “expected” his lawyer to lodge an appeal for him. However, the applicant has provided no evidence that he instructed a lawyer to lodge an appeal for him.

  14. The applicant’s lack of facility with the English language is not an adequate explanation for such a lengthy delay. It also appears, given that the applicant was employed by an NBN company, that he did have at least some English.

  15. It is also not an adequate explanation that he did not have funds for a lawyer, and that he was unfamiliar with court processes, when there are many free services that assist protection visa applicants.

  16. While one must sympathise with the breakdown of the applicant’s marriage, that circumstance does not explain a delay of six years.

  17. The applicant has provided no evidence of mental health issues.

  18. All in all, the applicant’s explanation for his delay in filing the application can only be regarded as very poor, even taking all the points cumulatively.  

    PREJUDICE

  19. The Minister did not claim that he would suffer any prejudice if the extension of time were granted.

    PROSPECTS OF SUCCESS OF THE UNDERLYING APPLICATION

  20. The applicant did not file any written submissions and did not elaborate on the grounds in the application at the hearing before this court. I will address them anyway.

    Grounds a to c

  21. The first three grounds of review in the application relate to the applicant’s Sri Lankan National Identity Card (“NIC”). They are:

    (a)One factor that was not addressed by the Tribunal, was that the Applicant is no longer in possession of his original NIC and will be travelling back to Sri Lanka on some form of temporary travel document.

    (b)In considering whether there is a real chance of the applicant would be targeted for any harm by the Sri Lankan authorities, The tribunal was needed to give proper consideration and weight that the applicant will be travelling to Sri Lanka on some form of “temporary travel document” and he does not have an original NIC (National Identity Card) and the possible consequences of not having the original.

    (c)There was no proper basis and it is unreasonable for the tribunal to come to its conclusion that the CID did not take his national Identity card (NIC), especially in the light of the fact that when he first arrived at Christmas island as an unauthorized maritime arrival, he provided photocopies of various identity documents, including his Sri Lankan birth certificate, marriage certificate and IDP card in support of his claimed identity. However, there was no NIC and this adds weight to his claim that it had been taken from him in the circumstances described by him.

  22. These grounds in summary are as follows:

    (a)the Tribunal failed to consider that the applicant does not have a NIC and, upon return to Sri Lanka, he will be travelling on a temporary travel document; and

    (b)it was unreasonable for the Tribunal to conclude that the authorities did not take the applicant’s NIC.

  23. In relation to the claim that the authorities took the applicant’s NIC, the Tribunal said in its reasons for decision:

    28. In addition to the above, the Tribunal also considers that the applicant’s evidence in relation to the CID’s questioning of his wife is inconsistent in significant respects. In his statement to the Department, the applicant did not mention that the CID or the authorities had been to his home to question his wife. However, during the Department interview the applicant told the delegate that “a few days” after his departure from Sri Lanka, the authorities came to his home and questioned his wife about his whereabouts. The applicant told the delegate that the authorities took his National Identification Card on the third occasion. The applicant told the delegate during the interview people have informed the authorities that he has come to Australia and people have come to the house looking for him and he fears further harm from those people. The applicant claimed that his wife told people he had gone to work, but when they found out he had gone to Australia they took his National Identity Card. The applicant stated that it was on the third occasion that they took the National Identity Card, but they have not returned since that time. The applicant told the delegate that he believes the authorities have taken an interest in him because people have betrayed him and some people make accusations. When asked about this during the hearing, the applicant stated that his wife told them that the police had come to his home in search of him and this first happened about two months after he arrived in Australia. When advised of the inconsistencies in relation to his evidence, the applicant stated that he is not educated and prior to coming to Australia he was unable to even sign his name.

    29. The representative has submitted that in relation to the credibility issues raised by the Tribunal, there are a number of factors that should be taken into account. The representative submitted that these include that as the applicant has been absent from the country for some time it is difficult for him to recount dates and time frames due to his lack of formal education and his lack of experience in dealing with persons in authority positions and his generalised mistrust as a result of the fact that he is a Tamil from Sri Lanka in dealing with persons in authority. The representative also stated that the applicant has indicated that he is stressed as a result of his concern for his family and he has had to articulate his claims through an interpreter, and he has difficulty doing so. When asked a number of times during the hearing why he was able to recall dates and time frames previously but appears to no longer be able to do so, the applicant also referred to his stress, anxiety and his concern for his family in Sri Lanka, as well as his limited education. The applicant had also earlier claimed in his statement to the Department that he only provided brief details during his entry interview because he was told to be brief and he did not know what he should disclose.

    30. The Tribunal has had regard to the applicant’s and the representative’s explanation for the inconsistencies in relation to the applicant’s evidence at different parts of the application process, including the entry interview, the statement provided to the Department, his protection visa interview and his hearing before the Tribunal. The Tribunal has also had regard to the applicant’s claims in relation to his entry interview whereby he was told to be brief and he did not know what he should disclose. The Tribunal accepts that the applicant has had limited formal education and he is a Tamil from a country which has a long history of the authorities treating Tamils with considerable mistrust. The Tribunal also accepts that the applicant is concerned and anxious about his family in Sri Lanka and that the process of being questioned by the Department and the Tribunal about his claims is stressful. The Tribunal has borne these factors in mind when considering the applicant’s claims. The Tribunal accepts that due to a lack of education the applicant may have difficulties with dates and time frames. However, the Tribunal does not accept the applicant’s explanation for why he would not tell the interviewer during the entry interview, even having regard to the need to be brief, that he had been sought and continually interrogated regarding his LTTE involvement. The Tribunal also considers that some of the inconsistencies regarding the number of times he was sought and whether his wife was contacted by the CID a few days after he left for Australia or some months after he left for Australia are not due to his lack of education, stress, anxiety or any other issues, but because he has sought to embellish and fabricate evidence in an attempt to provide a basis for protection in Australia. The Tribunal has reached these conclusions not only on the basis of inconsistencies in the applicant’s evidence, but because it does not accept that his circumstances indicate that he was considered to be an LTTE member or to have been involved with the LTTE more directly. The Tribunal is drawn to the conclusion that the applicant’s account of much of his experiences in Sri Lanka is not truthful. The Tribunal does not accept that the applicant had any adverse political profile as someone who was suspected of LTTE connections or involvement at the time he left Sri Lanka in mid 2012.

    31. Accordingly, the Tribunal accepts that the applicant was effectively required to live in an IDP camp; that he was questioned by the CID when he returned to his village. The Tribunal is also prepared to accept his claims that the SLA took his wife away because she was making alcohol. The Tribunal does not accept this had any ongoing ramifications for either the applicant or his wife. The Tribunal does not accept he was questioned and interrogated repeatedly or, as stated in his statement to the Department, that he never knew when he was going to be beaten or interrogated. The Tribunal also does not accept that his wife has been visited by the authorities and asked about his whereabouts or that his National Identity Card has been taken by the authorities. Nor does the Tribunal accept the applicant’s claims in relation to being forced to work for the army upon his release from the camp. Whilst the applicant indicated in his statement that he was forced to do work whilst in the camp he did not make this claim in his statement and it was raised for the first time during his protection visa interview. The Tribunal has not accepted the applicant’s explanation for inconsistencies and does not accept this would not have been included in his statement if he was forced to continue to work for the army after his release from the camp. Whilst accepting there were restrictions and monitoring of Tamils by the army after the war, which would inevitably have been unpleasant and oppressive, the Tribunal is not satisfied that there were any ongoing suspicions after the end of the civil war in March 2009 that the applicant was involved with the LTTE or that he was imputed with an adverse political opinion either during or after the war.

    (emphasis added)

  24. I do not consider that it was unreasonable, in the legal sense, for the Tribunal to conclude that the applicant’s NIC was not taken by the authorities. The Tribunal reasons disclose a rational and reasonable basis for that conclusion. That basis was that the applicant had given inconsistent evidence about when his NIC was taken (a few days or a few months after he left for Australia) and also because the Tribunal did not accept that the applicant was suspected by the authorities of having LTTE connections or involvement. Consequently, there was no reason for the authorities to go to his house and take his NIC.

  1. The applicant then claimed that the Tribunal did not consider the consequences for the applicant of returning to Sri Lanka without a NIC. However, the applicant did not claim to the Tribunal that there would be any adverse consequences for him in relation to returning to Sri Lanka without having a NIC. He only claimed that the authorities took his NIC. As the Tribunal rejected the applicant’s claim that the authorities took his NIC, and as the applicant did not claim to the Tribunal that the mere fact of not having a NIC could have adverse consequences for him, it was unnecessary for the Tribunal to consider the consequences of the applicant not having a NIC. In fact, there was no reason for the Tribunal not to think that the applicant had a NIC at his home in Sri Lanka.

  2. These grounds are not reasonably arguable.

    Ground d

  3. The fourth ground of review in the application is:

    The Tribunal has erred in its conclusion in relation to his religion claims. The tribunal has failed to ask itself, is it likely that he will be harmed, given he identifies as a Tamil Christian taking into account the relevant factors such as the rise of attacks against Christian churches and the problem with Buddhist extremists and not irrelevant factors and by failing to do so has come to an unreasonable decision by not even considering such factors that the applicant would face discrimination amounting to serious harm or any other kind of serious harm as an ordinary Christian, or even significant harm.         

  4. The Tribunal addressed the issue of the applicant’s religion as follows:

    47. As indicated above, the applicant claimed in his statement to the Department that the Sri Lankan authorities used his religion and his ethnicity/race as an excuse to harass and intimidate him and he will be identifiable because he is a Tamil and Christian. The representative also included various articles on the rise of attacks against Christian churches in Sri Lanka as well as some attacks by Buddhist extremists on a Christian pastor. However, when asked at the hearing whether he has suffered any harm because he is a Catholic/Christian, the applicant stated that he had not experienced any harm or any difficulties practicing his religion. The applicant told the Tribunal that he converted to Catholicism when he married his wife. He stated that he attended a church near his home regularly, but since his arrival in Australia he has rarely attended a Catholic church. The applicant initially went to a church near his home in Australia, but he cannot recall its name and he has not been to a Catholic church for about a year. When asked whether he fears harm because of his Christianity/Catholicism, the applicant stated that he does not and it is because he is a Tamil that he fears harm. The representative also confirmed, when the Tribunal queried the inclusion of several reports regarding the situation for Catholics/Christians in Sri Lanka, the applicant is not claiming to fear harm in relation to his religion.

    48. The Tribunal finds, therefore, on the applicant’s own evidence that he does not fear harm as a result of his religion. The Tribunal accepts that the applicant may be identifiable as a Tamil Christian, particularly whilst attending religions services. Furthermore, although the Tribunal accepts that there increasing friction between Christians and Buddhists and some attacks on churches, is not satisfied the applicant’s own evidence or the independent evidence indicates there is a real chance the applicant will be unable to practise his religion upon his return to Sri Lanka or that he will be subject to serious harm whilst doing so.24 Accordingly, the Tribunal is not satisfied on the evidence before it that there is a real chance that the applicant will suffer serious harm for reasons of his religion upon his return to Sri Lanka, now or in the reasonably foreseeable future.

    FN 24: See DFAT 2014, Country Report: Sri Lanka, 3 October, at p.11 which indicates that the Sri Lankan constitution guarantees freedom of religion. It indicates that there has been a rise on attacks against evangelical Christian churches, but that most members of religious groups are able to practise their faith unmolested.

  5. As shown in paragraph 47 of the Tribunal’s reasons for decision, the applicant and his lawyer both told the Tribunal that he did not fear harm on account of his religion. A subjective fear is an essential part of the “well-founded fear of harm” formulation that applies to refugee protection.

  6. The Tribunal did not separately consider the applicant’s religion in the context of complementary protection. However, the applicant did not claim that he would be subjected to significant harm for reasons of his religion. It does not emerge from the materials that there was a real risk that he would be subjected to such harm for reasons of his religion. Although the materials show that there have been attacks on Christian churches in Sri Lanka, the applicant expressly disavowed any concerns based on his religion. His lawyer also, when asked by the Tribunal about the inclusion in the lawyer’s submissions reports about the situation for Catholics and Christians, said that the applicant did not fear harm on that basis. It was therefore unnecessary for the Tribunal to consider that issue.  

  7. This ground is not reasonably arguable.

    Ground e

  8. The fifth ground of review in the application is:

    The tribunal has not properly considered the criterion in s.36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm.

  9. The Tribunal expressly considered the complementary protection issue at paragraphs 50 to 56 of its reasons for decision. In particular, the Tribunal considered that the applicant did not face significant harm in relation to his claimed actual or imputed LTTE connections, because the Tribunal did not accept that he had any such connections.

  10. The Tribunal accepted that the applicant departed from Sri Lanka illegally, and would probably be arrested at the airport, possibly held in remand while awaiting a bail hearing and possibly fined. However, the Tribunal did not accept that these circumstances amounted to significant harm.

  11. I do not accept that this ground is reasonably arguable.

    Conclusion on prospects

  12. It follows that the substantive application does not have reasonable prospects of success.

    CONCLUSION

  13. In view of the very long delay in bringing the application, the very poor explanation for the delay and the very poor prospects of success of the substantive application, the extension of time should not be granted. That is so even though there is no prejudice to the Minister.

  14. The application will be dismissed with costs. I will hear the parties on the question of quantum.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.

Associate:

Dated: 21 August 2024          

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
Tran v Minister for Immigration & Border Protection [2014] FCA 533
Kaur v Minister for Immigration and Border Protection [2015] FCA 1354