ARL15 v Minister for Immigration

[2016] FCCA 1907

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARL15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1907

Catchwords:
MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – application for an extension of time to bring proceedings –significant delay – extension of time not granted – consideration of the interests of the administration of justice – lack of merit in proposed grounds – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 477

Cases cited:

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263

SZRUR v Minister for Immigration & Border Protection (2013) 216 FCR 445;[2013] FCAFC 146

Applicant: ARL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1256 of 2015

Judgment of: Judge Smith

Hearing date: 7 June 2016

Date of Last Submission: 7 June 2016

Delivered at: Sydney

Delivered on: 29 July 2016

REPRESENTATION

The applicant appeared in person.

Solicitor for the Respondents: Mr K Eskerie, Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1256 of 2015

ARL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 12 August 2012. On 13 December 2012 he lodged an application for a protection visa. That application was refused by a delegate of the Minister and the applicant applied to the Refugee Review Tribunal[1] for review of that decision. On 9 March 2015 the Tribunal affirmed the delegate’s decision.

   [1] On 1 July 2015 its functions were transferred to the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. The applicant now seeks judicial review of the Tribunal’s decision. An application to this Court for such review must be made within 35 days of the date of the decision. The applicant lodged his application for review on 7 May 2015, some 59 days after the Tribunal’s decision. However, under s.477(2) of the Migration Act 1958 (Cth), the Court may extend the period for filing an application if:

   (a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3. There is no question that the first of those conditions has been satisfied in this case. The issue is whether the Court is satisfied that it is in the interests of the administration of justice that an extension be granted. For the following reasons, I am not so satisfied and the application will be dismissed.

Application for extension of time

1. There are a number of factors that are generally considered relevant to the issue in this case including the extent of, and explanation for the delay, any prejudice to the other parties, and the merits of the proposed application. The parties did not suggest any other relevant consideration.

2. The delay in this case is significant but not extraordinary. The uncontested evidence is that, with the assistance of a Mr John Sweeney, the applicant made an affidavit in support of this application on 20 March 2015. That is well within the period within which an application may be made. However, due to the pressure of work, clerical errors were not detected and the application was not filed as requested. In early May 2015 an officer of the Department of Immigration spoke to the applicant and suggested that he should start making preparations to return home. The applicant then spoke to Mr Sweeney on 6 May 2015 and asked what had happened to his judicial review application. The application was filed the next day.

3. The Minister submitted that there was no reasonable excuse for the delay in commencing proceedings and, in particular, that while the action of a representative can be material, it remained the applicant’s obligation to take reasonable steps to ascertain what steps he could take in respect of the Tribunal’s decision and any relevant time limits. That submission may be correct as far as it goes, but I consider that the applicant did take all such reasonable steps here. The application was filed out of time through no fault of his own. This provides a strong basis for the extension of time; however in my view, it is outweighed by the lack of any merit in the proposed grounds of the application.

4. Before turning to those grounds, it is necessary to set out a brief summary of the relevant facts and claims made by the applicant in support of his protection visa application, as well as the Tribunal’s reasons for its decision.

Background

1. Shortly after arriving in Australia the applicant was interviewed by an immigration officer. The applicant told the officer that he was seeking protection because his father was involved in politics. The applicant made more detailed claims when he lodged his protection visa application. Those were as follows:

   a)the applicant is a citizen of Sri Lanka of Sinhalese ethnicity and is a Christian. His mother passed away in 2010 and his father lives in Kokilai and is a fisherman;

   b)in 2007 the applicant moved to Kokilai to work as a fisherman with his father and at the time the village was controlled by the Sri Lankan military. During the conflict the applicant and his father were given fishing permits but in return they were forced to collect dead bodies from the sea or they would be forced to make bunkers for the army;

   c)after three years the applicant decided to leave Kokilai with the agreement of his father;

   d)he escaped to Negombo and stayed there with his sister while working with his father’s friend as a fisherman;

   e)several months after he arrived in Negombo, the applicant was told by his sister that a group of men had come to the house looking for him and had told her that he had escaped from Kokilai and that they suspected the applicant had been working for the Liberation Tigers of Tamil Eelam (LTTE) and that they would kill him if they found him;

   f)after that, the applicant arranged his departure for Australia by boat; and

   g)in February 2007 the applicant’s uncle was abducted by the LTTE and had been missing ever since; however the Sri Lankan Army suspected that the uncle was an LTTE supporter and that they had interrogated and tortured the applicant and his father. The applicant was afraid that if he returned to Kokilai that the Army would suspect that he was an LTTE supporter like his uncle and he was accused of being politically active against the government.

2. On 6 September 2013 a delegate of the Minister decided to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision.

3. On 17 February 2015 the applicant attended a hearing conducted by the Tribunal. At the hearing the applicant gave evidence that he had another uncle who had been attacked and killed by a large navy boat in 2007. He said that he was unsure why it had happened but there was a suspicion that his father had been helping the LTTE. At sea they were compelled to help the LTTE.

4. The Tribunal made its decision to affirm the decision of the delegate on 9 March 2015.

Tribunal’s decision

1. The Tribunal found that there were significant inconsistencies in the applicant’s evidence throughout the process of the application and so considered that his claims were not to be taken at face value but rather, considered individually.

2. The Tribunal first considered the claims about the two uncles of the applicant and the perception that his family sympathised with the LTTE. In this respect, the Tribunal accepted that the applicant’s uncle was abducted by the LTTE but found on the basis of country information that that would not implicate the applicant or his uncle as LTTE sympathisers. The Tribunal found that since neither the applicant’s father nor uncle were arrested or detained at the height of the civil hostilities, none of the family had been, or were, suspected of LTTE affiliations and were of no interest to the authorities at the time that the applicant left Sri Lanka.

3. Next, the Tribunal dealt with the claim that the applicant had fled Kokilai. It found that the applicant had been open about the fact that he had left that town as he had registered in Negombo even though, on his own evidence, he did not have to. The Tribunal also inferred from this, that the applicant had registered his departure from Kokilai if it was necessary to do so, and so he was not of any adverse interest to the authorities there.

4. The Tribunal also did not accept that the applicant was being sought in Negombo. First, because neither the applicant nor his father was suspected of involvement in the LTTE and, secondly, because his evidence on the point was contradictory.

5. For those reasons, the Tribunal found that there was no real chance that the applicant would face harm in Sri Lanka for reasons of any suspected LTTE affiliations or any personal interest in him by the authorities of Sri Lanka. It also rejected the applicant’s claim that he might face harm as a result of the political activities of his father.

6. The Tribunal then considered the possible impact of the fact that the applicant had departed Sri Lanka unlawfully and having made unsuccessful claims for asylum in Australia. In this respect, the Tribunal found that the applicant would, like all returnees, be interviewed at the airport upon return and have checks undertaken of his identity and criminal records. The applicant however, would not be mistreated during the process at the airport and the processes would not be applied to him in a discriminatory manner. Further, that the law pursuant to which the applicant would be questioned was one of general application.

7. For those reasons, the Tribunal concluded that the applicant did not face a well-founded fear of persecution for a Convention reason in connection with his illegal departure from Sri Lanka and return there as a failed asylum seeker. The Tribunal also found that there was no real chance that the applicant faced any harm at the airport in any event.

8. The Tribunal found that it would be likely that the applicant would be charged under the Immigrants & Emigrants Act for his illegal departure, taken to the Magistrates Court in Negombo and then brought before a Magistrate when available. It found that this could involve the applicant being held for a short period depending on the availability of the Magistrate and then he would be bailed. The Tribunal further found that a fine rather than a custodial sentence would be issued to him as it had been to people in the same circumstances as him.

9. For those reasons, the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason if he returned to Sri Lanka now, or in the reasonably foreseeable future, and therefore did not satisfy the criterion for the grant of a protection visa in sub-s.36(2)(a) of the Act.

10. The Tribunal then turned to consider the criterion in sub-s.36(2)(aa), often called the complementary protection criterion. In this respect it dealt first with the claims of suspected affiliation with the LTTE and, essentially for the reasons it had given earlier, concluded that there was no real risk that the applicant would suffer significant harm in this context.

11. The Tribunal next dealt with the possibility that the applicant would return to Sri Lanka as a failed asylum seeker. In this respect, it found that as the population of Sri Lanka generally was subject to the laws regarding illegal departure, the applicant was taken not to have a real risk of significant harm pursuant to sub-s.36(2B)(c) of the Act.

12. In respect of the impact of the applicant’s illegal departure, the Tribunal accepted that the prison conditions in Sri Lanka were poor and did not meet international standards due to gross overcrowding and lack of sanitary facilities. However, it found that the evidence did not support the conclusion that people who were remanded in prison in the way that the applicant might be were subjected to pain or suffering by an intentionally inflicted act or omission. The Tribunal did not accept that being held in remand for a relatively short period amounted to an act which could reasonably be regarded as cruel or inhuman or one which was intended to cause extreme humiliation which was unreasonable.

13. For those reasons, the Tribunal concluded that the short period in remand that the applicant might experience upon return to Sri Lanka did not give rise to some essential grounds for believing that he faced a real risk of significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment. The Tribunal also did not accept that there was a real risk of the applicant being arbitrarily killed or having the death penalty imposed upon him.

14. Further, the Tribunal found that the likelihood of a prison sentence for the applicant’s breach of the Sri Lankan law was remote and that being fined for such a breach would not meet any of the definitions of “significant harm”.

15. For those reasons, the Tribunal concluded that the applicant did not meet the complementary protection criterion and so affirmed the decision of the delegate.

Consideration

1. There are two grounds in the amended application.

2. The first ground is that the Tribunal erred in failing to consider each integer of the applicant’s claim. There are, in turn, two integers alleged not to have been considered by the Tribunal. The first is the threat of enforced disappearances by the Sri Lankan security services said to have been embodied by the “white vans” that the applicant claimed came searching for him.

3. There is nothing in the material before the Court to suggest that there was any claim concerning “white vans” that was different to the claim that the authorities had come searching for the applicant in Negombo. Indeed, the Tribunal records that the applicant’s evidence was that he knew that it was the Criminal Investigation Department (CID) who had come looking for him because “his sister told him that someone came in a white van”: Tribunal’s reasons at [51]. Once that is understood, it is clear that the Tribunal dealt with that claim and rejected it: see [51] – [53] of its reasons.

4. The second integer said not to have been dealt with by the Tribunal was that the applicant may be a witness of war crimes in Sri Lanka. This claim is said to have arisen from the claim that the applicant was forced to fish corpses from the sea by the Army. In my view, the Tribunal’s failure to deal with the possibility that the applicant may face harm as a witness for war crimes was not a jurisdictional error.

5. In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263 the Full Court of the Federal Court explained the relevant principle as follows:

   [58]The review process is inquisitorial rather than adversarial.  The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293–294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

6. The claim asserted by the applicant here, is one that would have required some construction or creative activity by the Tribunal. It was not one which could be fairly said to arise on the material. For that reason, consideration of the alleged claim was not a mandatory component of the Tribunal’s obligation to review the delegate’s decision.

7. For those reasons the first ground has no merit and, if an order extending time were granted, would be bound to fail.

8. The second ground is that the Tribunal erred in making illogical findings not supported by facts. The relevant particulars of this ground are stated as follows:

   (b)At [50] the Tribunal made a finding that the Applicant had registered his departure from Kokilai purely from the fact that the Applicant has registered his arrival in Negombo contrary to the submission of the Applicant;

   (c)At [53] the Tribunal arrives at a finding that the Applicant is not a person of interest to the CID because of a supposed contradiction in the period of stay in Negombo.

9. Paragraph 50 of the Tribunal’s reasons states:

   There is no information before the Tribunal to suggest that it was necessary to register to leave Kokilai in 2011. The applicant stated there was no village headman in Kokilai it was just under army control. Even if this were so, the fact that the applicant registered in Negombo (even though on his own evidence he was not required to do so if he was at sea for the majority of the time) satisfies the Tribunal that he also registered his departure if he was required to do so. The Tribunal does not accept that the applicant escaped from Kokilai nor that he was of interest to the authorities there.

   The applicant claimed that the Kokilai authorities would be concerned that he had left because the SLA thought there would not be enough people to work for the army. He had helped before and if the villagers did not do as they are told to do, the consequences would be the same as happened to his uncle who was killed by the navy and LTTE. They would suspect that they had helped the LTTE. However, the Tribunal has found that the authorities did not suspect the applicant of those activities and the Tribunal is not satisfied that the applicant was of any interest to the authorities when he left Kokilai.

10. The important finding in this paragraph is that the applicant was not of interest to the authorities when he left Kokilai. The basis put forward by the applicant for the interest by the authorities in him, was the suspicion that he, along with his uncles and father, were involved with the LTTE. The Tribunal gave reasons for rejecting that basis earlier in its reasons: see [43] – [45] of the Tribunal’s reasons. Amongst those reasons was that the applicant and his family had remained in Kokilai for four years after his uncle had been attacked by the Navy but, even at the height of the conflict, there was, in that time, no suspicion laid upon them of LTTE affiliation. That reasoning was based upon inferences of facts supported by logical grounds. As the finding was, in turn, one of the bases for the Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution in Sri Lanka, that ultimate conclusion was also supported by logical grounds.

1. Further, and in any event, I do not see any illogicality in the inference drawn by the Tribunal from the fact that the applicant had registered in Negombo. The logic underlying the Tribunal’s inference was that the applicant had complied with the law by registering his residence in Negombo even, on his own case, when he was not required to do so. That fact supports the inference that, when required to do so, the applicant was likely to comply with laws concerning registration of residence. That inference in turn supported the Tribunal’s conclusion that the applicant had not escaped from Kokilai as he had claimed. Escape from a certain location carries the inference that the escapee does not wish the authorities in that location to know of the escape, and further, to know of the place of relocation after the escape.

2. For those reasons, the first particular of the second ground does not have any merit.

3. Paragraph [53] of the Tribunal’s reasons states:

   The applicant’s evidence on this point was also contradictory. In the written statement, he set out that he stayed in Negombo for three or four months but claimed that he stayed in Negombo for a year at the hearing (although he was at sea for most of that time). The Tribunal does not accept that the applicant was sought by the CID or the Sri Lanka authorities for suspected LTTE affiliation on his own part or that of his family, or for leaving Kokilai without permission or for any other reason.

4. The applicant asserts that it was illogical for the Tribunal to conclude that he was not a person of interest to the CID because of a supposed contradiction in the period of stay in Negombo. That assertion, however, misrepresents the Tribunal’s findings. As I have mentioned, the Tribunal had already made findings that were supported by logical grounds that the applicant was not of any concern to the authorities in connection with the LTTE. The reference by the Tribunal in its reasons at [53] to the contradiction in the applicant’s evidence concerning his stay in Negombo was in addition to, rather than a critical part of the Tribunal’s conclusions in this respect. For that reason, even if there were some illogicality, which I do not need to decide, it was immaterial to the Tribunal’s decision and so did not amount to jurisdictional error.

5. For those reasons the second ground in the amended application has no merit.

6. I note that at the hearing of this matter the applicant stated from the bar table that it was possible that his mental state was not very good at the time of the hearing and so he made inconsistent statements. In light of that and the fact that the applicant was unrepresented at the hearing (see SZRUR v Minister for Immigration & Border Protection (2013) 216 FCR 445; [2013] FCAFC 146), I granted leave to the applicant to file and serve by 5 July 2016, any evidence concerning his mental state at the time of the Tribunal hearing in February 2015, such evidence to be by way of affidavit. No affidavit was filed in accordance with that leave. For that reason, any argument concerning the applicant’s mental status at the time of the Tribunal’s hearing would also have no prospect of succeeding.

7. The lack of merit in the grounds raised by the applicant outweighs the fact that the applicant has some excuse for his failure to file the application within the time required by s.477(1) of the Act. It suggests that, if the application for extension were granted, the application for review of the Tribunal’s decision would fail and therefore the extension would be of no utility.

8. In addition to these matters I have also taken into account the fact that there is no real prejudice to the Minister or the Tribunal caused by the delay in bringing these proceedings. However, I consider that is a neutral matter rather than one which weighs in favour of an extension of time.

9. For those reasons, I do not consider that it is in the interests of the administration of justice that there be an extension of the period within which an application for judicial review may be made in respect of the Tribunal’s decision.

10. The application will be dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 29 July 2016