Aon16 v Minister for Immigration

[2017] FCCA 2984

FEDERAL CIRCUIT COURT OF AUSTRALIA

AON16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2984

Catchwords:

MIGRATION – Application for an order extending time to file application for judicial review of decision of the Administrative Appeals Tribunal affirming decision not to grant applicant a Protection (Class XA) visa – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application and amended application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2B)(a), 476, 477(1), 477(2)

Cases cited:

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: AON16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 587 of 2016

Judgment of: Judge Manousaridis

Hearing date: 11 November 2016

Date of Last Submission: 11 November 2016

Delivered at: Sydney

Delivered on: 8 December 2017

REPRESENTATION

Solicitors for the Applicant: Mr S Tambimuttu of Hodges Legal

Solicitors for the First Respondent: Mr D McLaren of MinterEllison

ORDERS

1. The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35-day period prescribed by s.477(1) of the Act is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 587 of 2016

AON16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 16 March 2016 the applicant, a citizen of Sri Lanka, filed an application for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

2. The Tribunal made its decision on 30 October 2015, which means the applicant filed his application for judicial review outside the 35-day period prescribed by s.477(1) of the Migration Act 1958 (Cth) (Act). The applicant, therefore, seeks an order under s.477(2) of the Act extending the 35-day period prescribed by s.477(1) of the Act.

3. At the beginning of the hearing before me I raised with the legal representatives of the parties how the hearing should be conducted, and in particular whether it would be appropriate for me to hear the application for an extension of time, and the application for substantive relief concurrently, but that, in my reasons for judgment, I would consider and rule separately on the application for an extension of time. The legal representatives agreed that this would be an appropriate course. In the course of his submissions, however, Mr Tambimuttu, who appeared for the applicant, indicated that he desired that I only deal with the application for an order under s.477(2) of the Act. That is what I propose to do in these reasons.

Principles governing exercise of power under s.477(2)

1. Under s.477(2) of the Act the Court may order the extension of the 35-day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   [1] [2013] FCA 1284 at [47]-[48]

   (b)     Whether there is any prejudice to the Minister;

   (c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

3. The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[2] Further:[3]

   If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

   [2] [2015] FCA 1391 at [63] (cases cited omitted)

   [3] [2015] FCA 1391 at [62] (cases cited omitted)

4. As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[4] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[5]

   [4] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]

   [5] [2015] FCA 1391 at [62]

Explanation for delay

1. In what purports to be a statutory declaration, the applicant says that in “early November 2015” his “then legal representatives who were assigned to [the applicant] by the government” informed the applicant of the Tribunal’s decision. The applicant’s legal representative informed the applicant he had two options, namely, he could “appeal” the Tribunal’s decision in court “or” the applicant could prepare “a written submission to the Minister”. The applicant said that his legal representative advised him that he should prepare “a written submission to the Minister” rather than seek “judicial review of the AAT’s decision”.

2. The applicant instructed his legal representative to prepare a written submission to the Minister. The applicant’s legal representative did so on 21 December 2015 by sending a letter addressed to the Minister in which the applicant’s legal representative requested the Minister substitute a more favourable decision for the applicant than that made by the Tribunal.[6] “Approximately two weeks ago”, by which I understand the applicant to mean two weeks before the day he made his statutory declaration, the applicant received a telephone call from an officer of the Department of Immigration and Border Protection who told the applicant it was unlikely the Minister would intervene in the applicant’s case. The applicant also says he was “not aware there was a deadline to lodge an application for appeal to” this Court.

   [6] Exhibit A

3. This is not a reasonable explanation for the applicant not applying to this Court within the 35-day period prescribed by s.477(1) of the Act. The applicant was advised he had two options, one of which was to apply to this Court for judicial review of the Tribunal’s decision. The applicant does not say he understood that the options, of which his legal representative advised him, were both available to him. The applicant ought reasonably to have understood that the options of which his legal representative advised were alternative options, and that by accepting his legal representative’s advice to apply for Ministerial intervention the applicant had elected to forgo the option of applying for judicial review of the Tribunal’s decision.

4. The applicant’s ignorance of the 35-day period prescribed by s.477(1) of the Act also does not afford a reasonable explanation. It was up to the applicant to find out basic information about the rights he had to apply to this Court to challenge the Tribunal’s decision, and whether he was required to exercise such rights within a particular period.

Merits of proposed grounds

Applicant’s claims for protection

1. The applicant’s claims for protection, as set out in a statutory declaration dated 6 December 2012 that formed part of his application for a Protection visa, were as follows:[7]

   [7] CB64-68

   a)The applicant is a Tamil and a Catholic.

   b)At the beginning of January 2009, when at a train station, the applicant was detained by police, taken to a police station where he was kept for three days, and interrogated for more than twelve hours.

   c)The applicant was accused of travelling to Badulla to set off a bomb to kill a minister because the applicant fitted “the description the police had been given”, namely, “a young Tamil male from Jaffna travelling by train”. The police alleged they also had been given the applicant’s name.

   d)During his detention the police had taken the applicant’s fingerprints and warned the applicant that “all the police stations would have [the applicant’s] fingerprints”.

   e)The applicant was released after he signed an undertaking he would not return to Badulla or Hatton. The applicant was also warned that the record of his interrogation “would be accessible to authorities all over Sri Lanka”.

   f)The applicant returned to Jaffna where he remained until 2010. In Jaffna the local police subjected the applicant to threats and interrogation and he was detained on five occasions “on the basis of suspicion”. The police knew “what happened in Badulla” and accused the applicant of being a member of the LTTE (that is, the Liberation Tigers of Tamil Eelam). The police threatened to physically harm the applicant “if they confirmed [the applicant] was involved in the plans to kill the minister and if [the applicant] was found to be a member of the LTTE”.

   g)In 2010 the applicant moved to Colombo where he studied and worked in a café. The applicant began a tour guide business, and also worked as a tour guide for the zone manager of an NGO. There were no Tamil tour guides in the area where the applicant worked. All the tour guides were Sinhalese, and the applicant was taking away work from them. The Sinhalese discriminated against the applicant and treated him with suspicion. The Sinhalese regularly called the applicant insulting names and degraded him by claiming he “must be LTTE” and that the applicant was “causing trouble for us having you hear [sic]”.

   h)At the end of June 2012 the applicant was threatened by a “gang of Sinhalese people” who threatened the applicant that he should not remain in Colombo, that if they make “Tamils disappear no one will know or care”, that he should leave Colombo, and that he would be killed if he remained. Although the applicant reported this incident to the NGO, he did not report it to the police because of “what happened in Badulla”, and he feared the police because he was living in a predominantly Sinhalese area and so “there was a high possibility they would accuse [the applicant] of being an LTTE” member, which would result in harm to the applicant.

   i)In or around the first week of July 2012 a policeman came to the applicant’s home in Colombo and asked the applicant about the incident in which the applicant “was attacked by Sinhalese a few weeks earlier”. The policeman said the NGO had reported the matter to the police. After the applicant explained why he had not reported the incident to police the policeman told the applicant to “be careful and avoid crossing paths” with the Sinhalese.

   j)In the second week of July 2012, while “coming along the beach during the evening time, some people speaking [Sinhalese] attacked” the applicant. The members of the group beat the applicant severely and verbally abused him; and they asked why he was still in Colombo and why he “dared to complain” to the NGO and the police. After he escaped the group the applicant did not return to his home but went to his aunt’s home where he stayed for about ten days. During that period the applicant arranged to flee Sri Lanka because he could no longer remain in Colombo or return to where he had previously lived “due to the issues [the applicant] had at the train station in 2009”.

   k)After fleeing to his aunt’s house the applicant received news that the police and the Sinhalese group had been to the applicant’s house looking for him.

Tribunal’s reasons

1. The Tribunal understood the applicant to have made the following claims for protection:

   a)The applicant feared harm because he would be imputed with a pro-LTTE political opinion based on the applicant’s being a young Tamil male from the north of Sri Lanka, the applicant’s having been detained as an LTTE suspect in January 2009 and the applicant’s having been questioned, threatened, and detained on five occasions in Jaffna in 2010, and the applicant’s having sought asylum in a Western country.[8]

   b)The applicant feared harm because he departed Sri Lanka illegally.[9]

   c)The applicant feared harm from the Sinhalese who threatened and beat him in Colombo in 2012 and the police are unwilling to protect the applicant from harm from Sinhalese.[10]

   d)The applicant claimed that about one and half years before he left Jaffna in 2007 he had been involved in a demonstration protesting against the high security zone which ended in violence.[11]

   e)There are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Sri Lanka, there is a real risk the applicant will suffer significant harm.[12]

   [8] CB283, [12]

   [9] CB289, [45]

   [10] CB291, [54]

   [11] CB294, [70]

   [12] CB295, [74]

2. As to the first claim for protection, the Tribunal did not accept that the applicant’s profile and circumstances are such that would result in there being a real chance he will be persecuted because he is a Tamil originating from the north of Sri Lanka, or because he is a young Tamil male, or because he belongs to a particular social group of young Tamil males from the north of Sri Lanka, or from Jaffna, or because he sought asylum in a Western country, or because he was arrested and detained in Badulla in January 2009, or because he was threatened and detained on five occasions in Jaffna in 2009.[13] These findings were based on the following:

   a)The Tribunal did not accept the police arrested the applicant in January 2009 on suspicion of planning to kill a minister, or that he was detained for three days or beaten severely during that time. The Tribunal, therefore, did not accept the applicant faces a real chance of persecution “due to the imputation of a pro-LTTE political opinion on this basis on return to Sri Lanka now or in the reasonably foreseeable future”.[14]

   b)The Tribunal was willing to accept that police in Jaffna questioned the applicant on five occasions in 2009/2010, and that he was slapped on the face during one occasion.[15] The Tribunal did not accept, however, the applicant’s claim that the police had a particular interest in him because they suspected him of planning to assassinate a minister; and the Tribunal was of the view the police did not consider the applicant to be “a serious LTTE suspect at the time”, given that on each occasion they detained him, the police released the applicant after half an hour to an hour of questioning.[16] The Tribunal, therefore, concluded that, while the applicant may have been suspected of having links with the LTTE along with thousands of other young Tamil males from the north of Sri Lanka during the final phases of the war and the immediate aftermath, the Sri Lankan authorities did not consider the applicant to be a serious LTTE suspect, or to have “more elaborate links with the LTTE”.[17] In turn, the Tribunal concluded it found “remote the chance that the applicant would be seriously harmed on return to Sri Lanka by the authorities on the basis of an imputed political opinion because he was questioned by police a number of times in 2009/2010”.[18]

   c)Although the Tribunal accepted that, in the past, Tamils experienced widespread discrimination and harm, particularly during the conflict between the Sri Lankan Government and the LTTE, the Tribunal, relying on “independent sources”, found that simply being a Tamil, or a young Tamil male from the north of Sri Lanka, would not give rise to a well-founded fear of persecution.[19]

   d)The Tribunal accepted that, on his return to Sri Lanka, the applicant is likely to face questioning at the airport about his activities abroad, and may be asked questions about links he may have with the LTTE. Given, however, the Tribunal had found it was not satisfied the applicant had any actual or perceived association with the LTTE which would cause him to be targeted by the authorities, the Tribunal found that any questioning of the applicant at the Sri Lankan airport would quickly establish the applicant was not a member of the LTTE.[20]

   [13] CB289, [44]

   [14] CB284, [20]

   [15] CB285, [22]

   [16] CB285, [23]

   [17] CB285, [23]

   [18] CB285, [23]

   [19] CB286, [28]

   [20] CB289, [42]

3. As to the second claim for protection, the Tribunal accepted that, if he were returned to Sri Lanka, the applicant would be questioned at the airport, he would likely be charged with departing Sri Lanka illegally, and he may be held on remand for several days while awaiting a bail hearing. The Tribunal, however, did not accept there is a real chance the applicant will face serious harm during questioning or while in remand.[21]

   [21] CB290-291, [51]-[53]

4. As to the third claim for protection, the Tribunal:[22]

   a)accepted the applicant worked as a tour guide, both privately and for the NGO in Colombo from around 2010 up until shortly before he departed from Sri Lanka in the middle of 2012;

   b)accepted the applicant was financially successful, and that this may have incurred the jealousy of rival tour guides whom the applicant claims were primarily Sinhalese;

   c)accepted the applicant’s claim he was threatened twice and beaten on one occasion by a group of Sinhalese men and it was plausible that the Sinhalese men’s attack of the applicant may have been related to the applicant’s successful tour guide business; and

   d)was of the view the attack on the applicant by the Sinhalese men was a personal dispute with business rivals, and the Tribunal doubted these men would have a continued interest in the applicant, although it was willing to accept there is more than a remote risk the applicant would face harm in the form of physical assault from Sinhalese men if the applicant were to establish himself as a successful businessman in Mt Lavinia in the reasonably foreseeable future.

   [22] CB292, [61]

5. After referring to country information the Tribunal said it was not satisfied the state of Sri Lanka could meet the level of protection which citizens are entitled to expect. The Tribunal then concluded:[23]

   [T]he applicant faces a real chance of persecution for reasons of his membership of a particular social group of Tamil businessmen if he returns to Mt Lavinia (or elsewhere in Colombo region) now or in the reasonably foreseeable future.

   [23] CB294, [67]

6. The Tribunal also accepted the applicant may establish a business again on his return to Colombo, and, if he did so, he would likely be successful and once again incur the jealousy of, and face harm from, the Sinhalese men who had previously harmed him. The Tribunal, however, found the applicant could reasonably avoid this harm he fears by safely relocating to another area of Sri Lanka, including to his home area in Jaffna where the applicant’s family resides, or to Batticaloa where the applicant’s brother currently lives and works.[24]

   [24] CB294, [68]

7. It appears from the Tribunal’s reasons that it put to the applicant that it was reasonable for the applicant to relocate. The applicant is recorded as having responded by referring to underworld activities continuing in Sri Lanka, and by stating that: he had provided his fingerprints to the authorities and that it would therefore be easy “to find out about other problems which occurred before”; the applicant had left Sri Lanka illegally; the police came to question him about the attack by the Sinhalese men; the police always support the Sinhalese; the underworld and police work together; if he returns to Sri Lanka the applicant will have problems with the underworld all over the island; and wherever he moves in Sri Lanka, as a Tamil he would have to register at a police station.[25]

   [25] CB294, [68]

1. The Tribunal said it had regard to these concerns but noted it did not accept the applicant was known to the authorities or was viewed as a serious LTTE suspect, even though he was questioned numerous times in Jaffna in 2009 and 2010. The Tribunal was of the view the applicant’s dispute with rival business groups was confined to Mt Lavinia and it was not satisfied “these Sinhalese men” would attempt to track the applicant down elsewhere in Sri Lanka, “particularly if he no longer works as a tour guide in their area” and given the applicant did not indicate the Sinhalese men attempted to find the applicant through his family members who live in other parts of Sri Lanka. The Tribunal noted the applicant lived and worked in other parts of Sri Lanka including Central Province where he worked in the business of importing and selling garments; the applicant is young, speaks a number of languages, and has work experience, which would enable the applicant to relocate to another part of Sri Lanka and be economically viable to avoid the harm he fears from the Sinhalese men who threatened to attack the applicant in Mt Lavinia.[26]

   [26] CB294, [69]

2. As to the applicant’s fourth claim the Tribunal noted the applicant said he was not physically hurt during the student demonstration, and he was never questioned by the army or experienced any further problems, apart from regular checking of his ID and questioning in relation to that incident. The Tribunal, therefore, concluded the applicant was not seriously harmed or targeted in the government’s response to the demonstration and that the applicant’s chance of being seriously harmed by the authorities in relation to that incident is remote.[27]

   [27] CB294-295, [70]

3. As to the applicant’s fifth claim, relying on findings it had already made, the Tribunal concluded:

   a)it was not satisfied the applicant would be subjected to significant harm on his being temporarily detained on his return to Sri Lanka;[28]

   b)there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka there is a real risk of harm from the Sinhalese men who had attacked the applicant and that such harm would be significant harm;[29] but

   c)it would be reasonable for the applicant to relocate elsewhere within Sri Lanka and, for that reason, because of s.36(2B)(a) of the Act, it is taken that the applicant will not face a real risk of significant harm if he were returned to Sri Lanka.[30]

   [28] CB296, [76]

   [29] CB296-297, [79], [80]

   [30] CB297, [81], [82]

Proposed grounds stated in amended application

1. The application, as initially filed, contained three grounds of review. The applicant, however, sought leave to add a fourth ground as set out in the amended application if an order under s.477(2) of the Act is made. I propose to consider whether each of the grounds contained in the amended application are reasonably arguable.

Ground 1

1. Ground 1 is as follows (emphasis in original):

   The AAT committed jurisdictional error by failing to apply the correct test when considering the real chance of the Applicant attracting attention for reason of imputed/real political opinion if he is returned to Sri Lanka in the foreseeable future.

   PARTICULARS

   (i)The AAT accepted at [69] that the Applicant was questioned “numerous times” by the authorities and was assaulted once [22].

   (ii)The AAT accepted that the Applicant may have been involved in student demonstrations in Jaffna [70].

   (iii)The AAT accepted at [23] that the Applicant may have been suspected of having LTTE links along with thousands of other young Tamil males from the north.

   (iv)The AAT however refuted the claim made by the Applicant that the authorities knew him [68 and 69] despite having accepted that the authorities questioned the Applicant on [sic] numerous times [69].

   (v)On the basis of language used at [27] it is submitted that the tribunal impliedly has accepted [sic]  that the Applicant is an “LTTE suspect” though not a “serious LTTE suspect” until the time of his departure from Sri Lanka.

   (vi)The AAT however inferred that there was a remote chance that the Applicant would be seriously harmed as the Applicant was not considered a “serious LTTE suspect”. The AAT at [27] repeats its conclusion on this point (i.e. that the Applicant was not a “serious LTTE suspect” at the time of [sic] thereafter).

   The AAT’s erroneous reasoning on this point was founded on a higher tests [sic] that was applied when assessing if the Applicant’s fear was well founded for reason of real/imputed political opinion.

2. This ground is not reasonably arguable. It relies on selective findings made by the Tribunal without referring to the context in which those findings were made, and without referring to other findings the Tribunal made. That can be seen in relation to each of the particulars to the ground.

3. Particular (i) does not refer to the following:

   a)The Tribunal accepted the applicant was questioned in Jaffna in 2009 and 2010 in circumstances where the Tribunal found were “a particularly difficult time for Tamils in Jaffna . . . in the lead up to the end of the war” and, in that context, the Tribunal found it would not be surprising if the applicant was questioned by the police on occasion as a young Tamil male.[31]

   b)Each time the applicant was detained by the police the applicant was let go after only around half an hour to an hour of questioning.[32]

   c)The applicant may have been suspected of having LTTE links with thousands of other young Tamil males from the north of Sri Lanka “during the final phases of the war and the immediate aftermath”.[33]

   d)The Tribunal referred to country information that indicates that “since the end of the war in 2009, the focus of the Sri Lankan government’s concerns has changed and they are now interested in those who are perceived to be a threat to the integrity of Sri Lanka as a single state because they are perceived to have a significant role in relation to post-war separatism and a renewal of hostilities within Sri Lanka”.[34]

   [31] CB285, [22]

   [32] CB285, [22]

   [33] CB285, [23]

   [34] CB285, [23]

4. Particular (ii) ignores the Tribunal’s findings that the applicant said he was not physically hurt during the student demonstration, and he was never questioned by the army or experienced any further problems, apart from regular checking of his ID and questioning, in relation to that incident.[35]

   [35] CB294-295, [70]

5. Particular (iii) ignores that the Tribunal’s finding on which the applicant relies was made in relation to a particular time, namely, “during the final phases of the war and the immediate aftermath”;[36] and it ignores the Tribunal’s reference to country information to which I refer in paragraph 26(d) of these reasons.

   [36] CB285, [23]

6. Particular (iv) inaccurately represents the Tribunal as having made contradictory findings at paragraphs 68 and 69 of its reasons. What the Tribunal “refuted”, that is, did not accept, was the applicant’s claims that he was arrested and detained in January 2009, that while in detention the applicant’s fingerprints were taken and was told these together with the record of his interrogation “would be accessible [to authorities] all over Sri Lanka”. The applicant did not claim that he would be known to authorities in Sri Lanka because of his having been arrested and detained in Jaffna in 2009 and 2010.

7. As to particulars (v) and (vi), the Tribunal’s not being satisfied the applicant was considered to be a “serious LTTE suspect” does not logically imply the Tribunal was of the view the applicant was considered to be an LTTE suspect. In any event, these particulars ignore the context in which the Tribunal concluded it was not satisfied the applicant was considered to be a “serious LTTE suspect”, namely, “in the lead up to the end of the war”, and also ignores the Tribunal’s finding that “since the end of the war in 2009, the focus of the Sri Lankan government’s concerns has changed”.[37]

   [37] CB285, [23]

8. Given ground 1 relies on selective findings of the Tribunal taken out of their context, those findings cannot arguably disclose the Tribunal applied an incorrect test when considering whether there was a real chance the applicant would attract attention “for reason of imputed/real political opinion if he is returned to Sri Lanka in the foreseeable future”. It is beyond argument the Tribunal correctly understood and applied the real chance test to the applicant’s claims.

Ground 2

1. The second ground stated in the proposed amended application is as follows (emphasis in original):

   The AAT committed jurisdictional error as it failed to consider its own findings that were made that were relevant to the reasonableness of the Applicant relocating to Jaffna or Batticaloa. The Tribunal failed to consider those findings when dealing with the relocation issue.

2. The particulars to ground 2 assert the Tribunal failed to consider the following findings:

   a)The Tribunal accepted that the applicant “faces a real chance of Convention related persecutory treatment if returned to Mt Lavinia or elsewhere in the Colombo region”.

   b)The finding at paragraph 22 of its reasons that the applicant was questioned numerous times by the authorities and assaulted on one occasion in Jaffna.[38]

   c)The finding at paragraph 30 of its reasons that all Tamils face a degree of harassment and in some cases persecution.

   d)The finding at paragraph 33 of its reasons that the applicant originates from the northern Province in Sri Lanka and that some areas in that province were previously controlled by the LTTE “despite concluding that originating from a former LTTE controlled area in itself did not result in a need for protection”.

   e)The finding at paragraph 34 of its reasons that Tamils who reside in the northern Province of Sri Lanka are likely to have provided low-level material support to the LTTE.

   f)The finding at paragraph 35 of its reasons that the north of Sri Lanka remains highly militarised.

   g)The following findings at paragraph 67 of the its reasons (applicant’s emphasis):

   Given this country information about continued lack of confidence in the state by Tamils and the prevalence of corruption and impunity within the police force the Tribunal is not satisfied that, at this juncture, the state of Sri Lanka can meet the level of protection which citizens are entitled to expect . . .

   [38] CB285, [23], CB294, [69]

3. The applicant submits that the finding reproduced in paragraph 32(g) of these reasons indicates the Sri Lankan state is unable to meet its protection obligations to its Tamil citizens at the present time and that “the flipside of this statement is that the Applicant could not seek effective protection throughout Sri Lanka”.[39]

   [39] Paragraph (g) of particulars to ground 2

4. Ground 2 is not reasonably arguable because, like ground 1, it relies on findings made by the Tribunal without having regard to the context in which the findings were made and without reference to other findings the Tribunal made.

5. The findings in paragraphs 22, 30, 33, and 34 of the Tribunal’s reasons relate to a particular time, namely, in “the lead up to the end of the war”. Ground 2 ignores the Tribunal’s finding that there is no real chance the applicant would be persecuted if he returns to Sri Lanka because of his “membership of a particular social group of ‘Young Tamil males from the north’”, or because the applicant originates from the north, or because of “his status as a young Tamil male from Jaffna”.[40] Ground 2 also ignores the intermediate findings and evidence on which the Tribunal relied for so finding. These include the statement in the UNHCR 2012 Guidelines that “[o]riginating from an area that was previously controlled by the LTTE does not in itself result in a need for international protection in the sense of the 1951 Convention and its 1967 Protocol”;[41] a DFAT report of October 2014 which assessed that those Tamil civilians who were not members of the LTTE, including those who may have provided low-level of support to the LTTE, may be monitored by the Sri Lankan authorities, but are at low risk of being detained or prosecuted;[42]  the applicant’s informing the Tribunal that he was not a member of the LTTE;[43] and the Tribunal’s finding that it was not satisfied the applicant was of particular interest to the authorities in the past over the general interest they had in young Tamil males during the lead up to the end of the war and in the immediate post-war period.

   [40] CB288, [36]

   [41] CB287, [33]

   [42] CB287-288, [34]

   [43] CB288, [34]

6. As to the finding in paragraph 35 of the Tribunal’s reasons, the applicant ignores the other findings contained in that paragraph. These include the finding that “the situation in the north and east has greatly improved since the end of the war”, that in January 2015 the new government appointed two retired senior servants as governors in the northern and eastern provinces of Sri Lanka with a view to initiating measures to strengthen civil administration, and that the posts to which these retired civil servants had been appointed had previously been held by military personnel.[44]

   [44] CB288, [35]

7. The applicant’s reliance on the Tribunal’s finding made in paragraph 67 of its reasons ignores that it was made in a specific context, namely, in assessing whether there is a real chance of harm to the applicant from a group of people (Sinhalese men who operated competing tour guide operations) in a particular area (Mt Lavinia or elsewhere in the Colombo region) in particular circumstances (if the applicant were to resume the business of a tour guide in Mt Lavinia or elsewhere in the Colombo region).[45] The Tribunal’s finding was restricted to the Sri Lankan state not protecting the applicant from this particular risk of harm. The Tribunal did not make any findings that the applicant had a real chance of suffering harm from any other non-state actors in any other part of Sri Lanka. The finding in paragraph 67 of the Tribunal’s reasons, therefore, was not capable of giving rise to a claim the applicant faced a real chance of harm in other areas of Sri Lanka because he could not secure effective state protection in Sri Lanka.

   [45] CB292, [61]

Grounds 3 and 4

1. At the hearing before me Mr Tambimuttu, who appeared for the applicant, said he preferred that I deal with grounds 3 and 4 together; and Mr Tambimuttu made submissions without differentiating between these two grounds.

2. Ground 3 claims the Tribunal “failed to consider if the Applicant would face harm on account of his entrepreneurial attribute”. This ground claims the Tribunal ought to have considered this question because the Tribunal accepted the applicant faces a real chance of persecution because of his membership of a particular social group of Tamil businessmen if returned to Mt Lavinia or elsewhere in the Colombo region; and the Tribunal was of the view the applicant had the necessary attributes to establish himself as a successful businessman in Mt Lavinia or elsewhere in the Colombo region.

3. Ground 4 is as follows:

   The AAT failed to consider if the applicant faces a real chance/real risk of Convention related/Complimentary [sic] protection related harm if he was [sic] to relocate to an area outside of Mt Lavinia/the Colombo region due to his membership of a particular social group of Tamil businessmen [67]

4. In the particulars to this ground, the applicant refers to the following findings:

   a)“the applicant faces a real chance of persecution for reasons of his membership of a particular social group of Tamil businessmen if he returns to Mt Lavinia (or elsewhere in Colombo) now or in the reasonably foreseeable future”;[46]

   b)the Tribunal accepted the applicant was “successful financially”;[47]

   c)it is plausible that the applicant’s being threatened and beaten by the Sinhalese men was related to the applicant’s successful business as a tour guide;[48]

   d)if the applicant were to establish himself as a successful businessman in Mt Lavinia or elsewhere in the Colombo region there is more than a remote chance the applicant would face serious harm;[49] and

   e)the applicant could safely relocate to Jaffna/Batticaloa.

   [46] CB294, [67]

   [47] CB293, [61]

   [48] CB293, [61]

   [49] CB293, [61]

5. On the basis of these findings, the particulars go on to assert the following:

   (vi)The AAT failed to assess if the applicant faces a real chance of persecution for reasons of his membership of a particular social group of Tamil businessmen if he returns to Jaffna/Batticaloa.

   (vii)The AAT ought to have assessed the real chance/real risk of harm the applicant would face due to entrepreneurial attribute, as the applicant had established a successful business in the past. Should the applicant relocate to Jaffna/Batticaloa it is reasonable to expect him to establish himself as a successful businessman as he did in Mt Lavina which would expose him to serious/significant harm.

6. Particulars (vi) and (vii) to ground 4 suggest the Tribunal found or assumed that the applicant would modify his entrepreneurial attributes to avoid persecution outside of Mt Lavinia or elsewhere in the Colombo region.[50]

   [50] Paragraphs (viii) and  (ix) to particulars to ground 4

7. Grounds 3 and 4 are not reasonably arguable. First, the Tribunal’s findings on which the applicant relies could not reasonably have been considered by the Tribunal as giving rise to a claim that the applicant faced a real risk of harm because he displayed entrepreneurial attributes. The Tribunal’s findings on which the applicant relies were that the applicant faced a real chance of harm from a specific group of people (Sinhalese men who operated competing tour guide businesses) in a particular area (Mt Lavinia) in particular circumstances (if the applicant were to resume his operation as a tour guide in Mt Lavinia).[51] The findings by themselves could not logically support a claim that the applicant would face a risk of harm outside Colombo if he were to conduct a business or otherwise exercise his entrepreneurial attributes.

   [51] CB292, [61]

8. Second, as I have already noted, the Tribunal put to the applicant the possibility of the applicant’s safely relocating to other parts of Sri Lanka. The applicant, however, did not submit that he feared he would be harmed if he were to relocate to other parts of Sri Lanka because he intended to carry on a business. The applicant instead referred to underworld activities continuing in Sri Lanka, and stated that: he had provided his fingerprints to the authorities; the applicant had left Sri Lanka illegally; the police came to question him about the attack by the Sinhalese men; that the underworld and police work together; that if he returns to Sri Lanka he will have problems with the underworld all over the island; and that if he moves, as a Tamil, he would have to register at a police station.[52]  In other words, the applicant did not claim that if he were to relocate to other parts of Sri Lanka he would be harmed by persons, such as Sinhalese business competitors, in those areas because he intended to conduct a business. The applicant claimed he feared harm for other reasons.

   [52] CB294, [68]

Conclusion on merits

1. None of the grounds contained in the amended application are reasonably arguable or have reasonable prospects of success; and that is so either because, as is the case with grounds 1 and 2, they are based on a plainly incorrect or incomplete representation of the Tribunal’s reasons or, as is the case with grounds 3 and 4, they rely on findings of the Tribunal that cannot reasonably give rise to the claims the applicant submits the Tribunal ought to have considered, but failed to consider.

Conclusion and disposition

1. Given the applicant’s not insubstantial delay in applying for judicial review of the Tribunal’s decision, the absence of an adequate explanation for the delay, and, above all, the grounds on which the applicant proposes to rely not being reasonably arguable or not having reasonable prospects for success, I am not satisfied it is necessary in the administration of justice that an order should be made under s.477(2) of the Act to extend the 35-day period prescribed by s.477(1) of the Act for making an application for relief under s.476 of the Act. I propose, therefore, to order that the application for an order under s.477(2) of the Act be dismissed.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date:  8 December 2017