AOK16 v Minister for Immigration

[2016] FCCA 1418

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOK16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1418

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division – Protection (Class XA) visa – extension of time – real chance test – whether the Tribunal erred in making adverse credibility findings against the applicant – whether the Tribunal took irrelevant considerations into account – whether the Tribunal denied the applicant procedural fairness – no arguable jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 425, 476, 477

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 18

Applicant: AOK16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 588 of 2016

Judgment of: Judge Street

Hearing date: 10 June 2016

Date of Last Submission: 10 June 2016

Delivered at: Sydney

Delivered on: 10 June 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the First  Respondent: Mr A Keevers
Sparke Helmore

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 588 of 2016

AOK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 8 February 2016 affirming a decision of the Tribunal not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Sri Lanka and his claims are assessed against that country. The application for review was filed two days late and the applicant needs an extension of time under s.477 of the Migration Act 1958. In relation to s.477 of the Migration Act 1958, an extension of time requires, first, a satisfactory explanation in relation to the delay, which in this case was only two days, and, second, that there is a sufficiently arguable case as a matter of merit to warrant an extension of time in the interests of the administration of justice. 

2. The applicant has had read an affidavit by a pro-bono assistant that explains the delay in the present case.  The critical issue is whether or not there is a sufficiently arguable case of jurisdictional error to warrant an extension of time in the interests of the administration of justice.  The applicant claimed to fear harm in summary by reason of his father’s involvement in politics, being an active supporter of the UNP and until 1999 his active work with his relative who was a UNP member of Parliament.  The applicant claimed that he was targeted in 2010 in a bike accident by political opponents of his father who were seeking revenge against him by injuring the applicant.  The second fear the applicant identified was that he became involved in youth activities of the UNP in a particular location from May 2011 and the applicant says that he and his wife were threatened by political opponents.

3. The applicant tendered a letter from the General Secretary of the UNP dated 21 August 2012 in support of his alleged fears. The applicant also tendered a letter from another person dated 5 March 2014 in support of the applicant’s application as well as a press report in relation to the death of the husband of the person who wrote the letter on 5 March 2014. The Tribunal found that it did not accept the applicant’s evidence about his father’s ongoing political activities after 1999 or that he was sent away to school for his safety or that their home was bombed in 2005 or that his family has received ongoing threats.  The Tribunal found the evidence was not credible.  The Tribunal did not accept there was a real chance the applicant would suffer serious harm or a real risk that he would suffer significant harm in the future because of his father’s past political activities if he returns to Sri Lanka.

4. The applicant gave evidence in relation to alleged incidents prior to him leaving Sri Lanka, including people coming to his home. The Tribunal found that it did not accept that those incidents occurred. The Tribunal decided to give no weight to the letter from the General Secretary of the UNP for detailed reasons.  The Tribunal did not accept the applicant’s evidence about his activities in a particular location and their consequences as being credible.  The Tribunal found, taking into account the evidence before it, that the applicant had not suffered any serious or significant harm in Sri Lanka because of his father’s political opinion or activities and found that there was not a real chance that he would suffer serious harm or a real risk that he would suffer significant harm for either of those reasons in the future in Sri Lanka.

5. The Tribunal found that there was not a real risk that the applicant would suffer serious harm or a real risk he would suffer significant harm in the reasonably foreseeable future if he returns to Sri Lanka because he is a failed asylum seeker who left Sri Lanka illegally.  The Tribunal made reference to taking into account the applicant’s claims singularly and cumulatively and found that it was not satisfied that there is a real risk that the applicant would suffer serious harm in the reasonably foreseeable future for a Convention reason if he returns to Sri Lanka and found that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.

6. The Tribunal said that it did not accept as credible the applicant’s claims about ongoing threats to his father and his family, including the applicant, from his father’s political opponents or the applicant’s claims of threats from his political opponents arising from activities in a particular location. The Tribunal did not accept there is a real risk the applicant would suffer significant harm if he returned as a failed asylum seeker who left Sri Lanka illegally. It was in those circumstances that the Tribunal found that the applicant did not satisfy the criteria under s.36(2) of the Migration Act 1958 and affirmed the decision of the delegate made on 31 July 2014. 

7. Following that decision, the applicant applied for a review on 25 August 2014.  By a letter dated 14 December 2015, the applicant was invited to attend a hearing to take place on 1 February 2016.  It is apparent from the Tribunal’s reasons that the applicant appeared on that date to give evidence and present arguments and was assisted by an interpreter. 

8. On 28 April 2016 a Registrar of the Court gave the applicant an opportunity to file an amended application, affidavit evidence and submissions. No further affidavit evidence or amended application or submissions were filed. At the commencement of the hearing the Court explained to the applicant that this was a final hearing to determine whether or not the applicant should have an extension of time under s.477.

9. The Court explained that, in relation to s.477, there were two issues that arose. First, an adequate explanation for the delay and, secondly, that there was a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice. The Court explained that whether there is sufficiently arguable case depended upon whether the Tribunal’s decision could be said to be the subject of reasonable argument that it was affected by legal error. The Court explained that this involved whether or not the Tribunal’s decision could be said to be unlawful or unfair. The applicant confirmed that he understood what the Court had said. The Court proceeded to explain that it would identify the evidence and then hear submissions from the applicant and then submissions from the solicitor for the first respondent and then submissions from the applicant. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

10. The applicant did not put any oral submissions-in-chief when invited to do so.  The solicitor for the first respondent identified that the Tribunal had given cogent reasons for the adverse findings in relation to the documentary evidence sought to be advanced by the applicant in support of his claims.  The solicitor for the first respondent submitted that the adverse findings in relation to the applicant’s claims were open and could not be said to lack an evident and intelligible justification.  The solicitor for the first respondent said that on the face of the material the applicant had a genuine hearing and that grounds 1 and 2 failed to disclose any arguable case of jurisdictional error.

11. In the course of the submissions of the solicitor for the first respondent, the Court identified that the delay in the present case was only two days and that it was the merits of the application that were of significance.  In reply to the solicitor for the first respondent, the applicant said he wanted a different interpreter.  When asked why, the applicant explained that the interpreter present had been the interpreter at the time of his initial interview.  The Court asked the applicant whether he understood what was being said by the interpreter and the applicant confirmed that he did.  The Court asked the applicant whether he had understood what had been said by the Court and the applicant confirmed that he did.  I am satisfied that there was no failure by the interpreter to communicate effectively with the applicant and that the applicant has had a proper and fair hearing in relation to his application for an extension of time.

12. The applicant said that he did not know about the time requirements in relation to the delay in the filing.  I accept that in the circumstances of the present case and the affidavit of the solicitor, there is an adequate explanation for the delay and that the real issue is whether or not the application identifies sufficiently arguable grounds for an extension of time in the interests of the administration of justice. 

13. The grounds of the application are as follows:

    1. The Tribunal erred in considering wrong issues in relation to consideration of the corroborative evidence provided by the applicant and failed to provide the applicant with an opportunity for a fair hearing in accordance with section 425 of the Act.

    Particulars

    Instead of considering each documents and deciding whether to give any weight, the Tribunal made findings on the evidence that each document did not provide to corroborate the applicant's evidence

    2. The Tribunal failed to put her reasons for the findings she made on each document to the applicant for comment and failed to provide him with an opportunity for a fair hearing in accordance with section 425 of the Act.

14. It is apparent that the Tribunal did, in relation to ground 1, consider the applicant’s evidence and the material advanced by the applicant alleged to corroborate his claims. It was a matter for the Tribunal to determine whether or not to accept the applicant’s evidence and to determine what weight to give to those documents. There is nothing on the face of the Tribunal’s reasons or in evidence before the Court to support the proposition that the applicant did not have a genuine hearing in accordance with s.425 of the Migration Act 1958.  Nothing in ground 1 identifies a sufficiently arguable ground of jurisdictional error to warrant an extension of time. 

15. In relation to ground 2, the adverse findings made by the Tribunal in relation to the documents tendered by the applicant were the subject of reasons that were open to the Tribunal.  The Tribunal’s reasons cannot be said to lack an evident and intelligible justification.  The proposition that the applicant was denied a fair hearing alleged in ground 2 is not supported by any material before this Court and is not consistent with the orthodox reasoning of the Tribunal that identifies issues being raised by the Tribunal with the applicant and a testing of the applicant’s claims.  Ground 2 fails to identify any arguable jurisdictional error. 

16. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 18 at [24]-[25] and [59]-[60]. I am satisfied that the grounds in the application fail to disclose any sufficiently arguable ground of jurisdictional error to warrant an extension of time in the interests of the administration of justice. I am satisfied that this is an appropriate case in which to refuse to extend time under s.477 of the Migration Act 1958. The application for an extension of time under s.477 of the Migration Act 1958 is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 June 2016