ARX15 v Minister for Immigration

[2015] FCCA 2242

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARX15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2242

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection visa – whether a sufficiently arguable case exists to warrant an extension of time – whether Tribunal erred in making adverse finding of credit – no jurisdictional error – application dismissed.

Legislation:

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

ARS15 v Minister for Immigration and Border Protection & Anor [2015] FCCA 2135

Applicant: ARX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1280 of 2015

Judgment of: Judge Street

Hearing date: 18 August 2015

Date of Last Submission: 18 August 2015

Delivered at: Sydney

Delivered on: 18 August 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr L Gell

Clayton Utz

ORDERS

1. The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application under s.477 of the Migration Act 1958 for an extension of time is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $3416

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1280 of 2015

ARX15

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 31 March 2015 affirming a decision of a delegate not to grant the applicant a protection (class XA) visa. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country.

2. The applicant sought an adjournment identifying that he had been trying to find a solicitor and said that over a month ago, he gave the court book and other documents to a solicitor.  The applicant gave no earlier notice to the first respondent of the seeking of any adjournment.  The applicant assets from the bar table that he had taken steps to obtain a lawyer since the filing of his application on 11 May 2015 but had been unsuccessful.

3. The applicant attended Court on 18 June 2015, when the matter was fixed for hearing, and was given a copy of the orders fixing the matter for hearing.  The first respondent opposed the adjournment.  The explanation by the applicant in support of the adjournment is insufficient and there is no proper basis to conclude that there is any utility in granting an adjournment.

4. I am satisfied, in this case, that to adjourn the matter would only unnecessarily increase the costs to the parties and utilize limited Court time. There is no evidence before the Court that provides a satisfactory basis to infer that an adjournment would have any practical benefit and, further, in this case, the absence of any sufficiently arguable ground in relation to the s.477 application for an extension of time, is a further factor warranting refusal of the application for an adjournment. It was on these grounds that the adjournment was refused.

5. The application for review was not filed within the 35-day time period specified in s.477, and accordingly an order for extension of time is required in respect of the application filed in this Court.

6. The grounds upon which an extension of time are generally granted involve first whether there is a satisfactory explanation for the delay and secondly whether there is a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice.  In this case the application was six days late, and there is an explanation proffered by the applicant, which the first respondent does not suggest is of itself inadequate.  The first respondent does, however, oppose an extension of time on the ground that the issues raised are insufficiently arguable to warrant an extension of time in the interests of the administration of justice.  The grounds in the application are as follows:

   1. I appointed a Lawyer from Balmain Uniting Church. She could not file the appeal papers since she was not well and gave me back the papers. I could not therefore file in time.

   2. I will not have a chance to apply due to no fault on my part.

   3. I am late only by a few days.

7. In relation to ground 1, the absence of any identified irrelevant consideration means this ground could not succeed.  Further, it is clear that the Tribunal correctly addressed the relevant law applicable to the applicant’s application for a protection visa and identified the applicant’s claims and evidence in support of the same as well as taking into account the ministerial direction number 56 under s.499 and the relevant country information. 

8. The applicant’s claim of fear of persecution was based on his Tamil ethnicity, membership of a particular social group namely being a suspected former LTTE member, family relatives of a former LTTE member and a failed asylum seeker as well as an illegal departee and being imputed with having a political opinion in support of the LTTE as well as fear of being persecuted by military groups associated with the Sinhalese army.  It is clear that the Tribunal identified each of these claims in its reasons as well as summarising the submissions that were put on behalf of the applicant. 

9. The applicant alleged two particular incidents occurred in 2006 and 2012, both of which were ones that the Tribunal did not accept had occurred.  The Tribunal identified its reasons for rejecting the applicant’s credit, and those findings had a logical foundation.  The adverse findings in relation to the applicant’s credit cannot be said to lack an evident and intelligible justification, and it was a matter for the Tribunal to determine whether or not to accept the applicant’s credit.  Having rejected the particular incidents advanced by the applicant, the Tribunal relevantly found:

   77. As for the Karuna group, that it did not find him for about two years after his return to Sri Lanka shows a singular lack of interest or incompetence.  The Tribunal does not accept that Karuna kidnapped the applicant in 2006.

   …

   84. That the report is not genuine reinforces the Tribunal in concluding that the applicant’s claims that he was kidnapped in 2006 and that the same people continue to pose a risk or chance of harm to him if he returns to Sri Lanka, are not credible.

   …

   86. As the Tribunal does not accept that the applicant’s evidence is credible, it does not accept that [X] was in the LTTE, that the applicant was kidnapped by people in 2006 or that those people continue to be interested in him or that he has been of interest to Karuna, any paramilitary, government or other such person or group in the past or that any such person or persons have every sought him out or visited his family members looking for him or continue to have any interest in him.

   …

   90. That he was arranging to go to Malaysia in about January 2012 before the claimed incidents in April and May 2012 which is the basis for his claim to have had to flee Sri Lanka, reinforces the Tribunal in finding that his claims for protection are not credible. Although he claimed to have been arranging to go to Malaysia because of his past problems, he had not recounted any threat of harm to him from the time he returned to Sri Lanka until April 2012.  The Tribunal finds that the applicant was seeking work outside Sri Lanka.  Malaysia had been denied to him by an unscrupulous agent.  Going to Australia was another opportunity to work and earn money.

10. The Tribunal then turned to the issue of the applicant having illegally departed Sri Lanka and being a failed asylum seeker and relevantly found:

    96. The Tribunal does not consider that the procedures followed on the applicant’s return, including detention at the airport or in the prison, would constitute a real risk of significant harm to the applicant. In making that finding, the Tribunal has taken into account the country information about conditions in places of police or military detention and prison conditions, including claims of torture and cruel, inhuman or degrading treatment. However, in the applicant’s circumstances, the Tribunal does not accept that there is a real risk of significant harm because of detention or imprisonment for a short period.

    97. The Tribunal does not accept that the conditions while detained at the airport or at the prison for a maximum of three days are serious harm or significant harm.  In making the latter finding, the Tribunal has considered the definitions in s.36(2A) and s.5. 

    98. The Tribunal does not accept that the applicant’s circumstances would result in his being given a custodial sentence.  He heard about a ship leaving, his sister raised the money and he left.  He was not involved in people smuggling.

    …

    100. Because the Tribunal does not accept his claims about what has happened in the past in Sri Lanka for the reasons given above, it does not accept that he may be arrested outside the airport after his return.

    101. For the above reasons, the Tribunal does not accept that if he returns to Sri Lanka, there is a real chance that the applicant will suffer serious harm or that there is a real risk that he will suffer significant harm because he is a Tamil, and/or because of his membership of a particular social group, suspected former LTTE members, and/or because of his particular social group  familial relatives of a former LTTE member, and/or because of his membership of a particular social group failed Tamil asylum seeker returned to Sri Lanka, and/or because of his political opinion, imputed support for the LTTE which will be strengthened because he has returned from abroad.

    102. The Tribunal has taken into account the representative’s comprehensive submissions and supporting information.  However, it has considered the particular claims and circumstances of the applicant and for the reasons given above does not accept his evidence is credible and prefers relevant DFAT assessments and information about failed asylum seekers to other country information before it to the extent that it differs from that in the  DFAT report.

    103. The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future for a Convention reason if he returns to Sri Lanka. 

    104. The applicant does not have a well-founded fear of being persecuted for a Convention reason if he returns to Sri Lanka.

11. It was in those circumstances the Tribunal found that the applicant was not a person in respect of whom Australia had a protection obligation and that the applicant did not satisfy the criteria under s.36(2)(a). In relation to complementary protection, the Tribunal noted that it does not accept that the applicant’s claims about his past circumstances in Sri Lanka are credible and, taking into account the country information, found that it was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk he will suffer significant harm.

12. It was in those circumstances the Tribunal found that the applicant was not a person in respect of whom Australia had a protection obligation under s.36(2)(aa). The applicant did not satisfy the criteria under s.36(2). There is nothing in the Tribunal’s reasoning that supports there being any sufficiently arguable case of jurisdictional error identified by ground 1.

13. In relation to ground 2 the generalised assertion of failing to consider relevant matters again fails to identify any jurisdictional error.  For the reasons given, there is no sufficiently arguable jurisdictional error disclosed by ground 2. 

14. In relation to ground 3, I accept the first respondent’s submissions that it is clear that the Tribunal in paras.91 to 100 took into account the conditions to which the applicant would be exposed as a result of being returned to Sri Lanka and that this ground is an impermissible challenge to findings of fact made by the Tribunal.  Ground 3 does not disclose any sufficiently arguable jurisdictional error.  The Court has also raised with the first respondent the decision of this Court in ARS15 v Minister for Immigration and Border Protection & Anor [2015] FCCA 2135, and I accept that that decision is clearly distinguishable, given the reasons of the Tribunal in this case, and that there is no sufficiently arguable jurisdictional error arising from anything said by the applicant.

15. The applicant made reference to the proposition that the Tribunal did not deal with his problem with the paramilitary. However, it is clear that the applicant’s credit in this regard was rejected by the Tribunal referred to above. Nothing said by the applicant identified any basis upon which it could be said there was an arguable jurisdictional error. I am satisfied that the interests of the administration of justice do not, in these circumstances, warrant an extension of time. The application for an extension of time under s.477 is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 27 August 2015