ATB15 v Minister for Immigration and Border Protection
[2016] FCA 889
•1 August 2016
FEDERAL COURT OF AUSTRALIA
ATB15 v Minister for Immigration and Border Protection [2016] FCA 889
Appeal from: ATB15 v Minister for Immigration & Anor [2015] FCCA 3189 File number(s): WAD 124 of 2016 Judge(s): NORTH J Date of judgment: 1 August 2016 Legislation: Federal Court Rules 2011 r. 36.03(a) Date of hearing: 1 August 2016 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No catchwords Number of paragraphs: 26 Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondents: Mr A Burgess Solicitor for the Respondents: Sparke Helmore ORDERS
WAD 124 of 2016 BETWEEN: ATB15
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
1 AUGUST 2016
THE COURT ORDERS THAT:
1.The application for an extension of time in which to appeal from the judgment of Judge Hartnett delivered on 1 December 2015 is refused.
2.The applicant pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH J:
INTRODUCTION
Before the Court is an application for an extension of time within which to file a notice of appeal from the Federal Circuit Court to this Court. On 1 December 2015, the Federal Circuit Court dismissed an application for review of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal, made on 31 March 2015. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the applicant a protection visa.
The applicant is a citizen of Sri Lanka. He is Sinhalese and Catholic. He lived in a village near Negombo. His occupation was fisherman. He arrived in Australia on 23 July 2012. He left Sri Lanka unlawfully from Negombo Bay and travelled to Australia by boat.
THE PROCEEDING IN THE TRIBUNAL
Before the Tribunal the applicant made a number of claims. He claimed to fear persecution on the basis of imputed or actual political opinion. This claim arose out of the assistance he said he gave to Sangeet, a candidate in the municipal elections in the Negombo area. In the month before the election on 8 October 2011 he said he worked with 20 or 25 others to put up posters and hand out cards in support of Sangeet, who was the United National Party (UNP) candidate. In the course of doing that he said that he was attacked by supporters of the United People’s Freedom Alliance. He also said that after the elections he was assaulted by a group of people that he thought were political opponents of the UNP and also that he received threatening phone calls.
On this claim the Tribunal determined that the applicant was a low-level ordinary supporter of the UNP. The Tribunal referred to country information from the UNHCR, which listed the categories of people in need of protection. The Tribunal concluded that the applicant did not fall into any of those categories. The Tribunal also referred to information which indicated that the political situation in Sri Lanka had improved since the elections held in January 2015. In relation to the events upon which the applicant relied:
55. The Tribunal found the applicant’s evidence about the assaults and threats he received pre and post-election vague and lacking in credibility. The Tribunal found the applicants [sic] claim that he was specifically targeted and assaulted by the UPFA and/or SLFP surprising given his limited involvement with the UNP and lack of profile. The Tribunal does not accept he was attacked by UPFA/SLFP supporters or received threatening telephone calls as claimed.
The Tribunal then considered a letter purportedly authored by the UNP candidate that the applicant said he had supported. The Tribunal expressed concern about the authenticity of the letter, both because of the terms of the letter and also as a result of country of origin information from the United Kingdom which indicated the availability of non-genuine documents in Sri Lanka. The Tribunal concluded:
60. No evidence has been provided regarding the providence [sic] of the letter. The letter is undated and is inconsistent with the applicant's evidence at the hearing that he was not an active member of the UNP. The body of the letter refers to the applicant by a different name. The Tribunal also finds the letter of little assistance in supporting the applicant's claim.
61. Having regard to the concerns about the applicant's evidence detailed above, the Tribunal does not accept the applicant had any involvement in the Local Authority Elections held in Negombo on 8 October 2011. The Tribunal does not accept the applicant is related to Nanayakkara Warnakula Patabedige Teniran Sangeeth Perera.
The applicant also made a claim that he feared persecution based on imputed or actual political opinion arising from his involvement in a demonstration conducted by the Fisheries Association. The fishermen protested against increases in the price of diesel and petrol. The Tribunal concluded in relation to this claim as follows:
68. The Tribunal accepts that as a fisherman the applicant may have taken part in protests with other fisherman [sic] over the increase in fuel prices. The Tribunal accepts the applicant may have contacted friends and enquired if they were attending the planned rally. The Tribunal finds however that the applicant exaggerated his evidence at the hearing and does not accept he was an organiser or activist or that he arranged meetings and rallied all young people in his village.
69. As stated above, the Tribunal found the applicant's evidence regarding threatening phone calls he received in Sri Lanka vague and lacking in detail. It is unclear when the calls were made, what was said or the purpose behind the calls. The Tribunal does not accept the applicant received any threating [sic] phone calls because he was [sic] took part in a rally and/or because he was a UNP supporter. The Tribunal does not accept the claim that the applicant has a profile with the authorities or would be seen as anti-government because he is a member of the local Fishing Association or because he took part in a rally in 2012.
Then the applicant claimed a fear of persecution because he left Sri Lanka illegally. Section 45(1)(b) of the Sri Lankan Immigrants and Emigrants Act makes it an offence to depart other than via an official port of entry or exit such as a seaport or airport.
On this claim, the Tribunal conducted a comprehensive analysis of people who were likely to be targeted on return by the government of Sri Lanka. Given that the applicant did not have a political profile sufficient to attract attention, the Tribunal considered on the material before it that it was unlikely that the applicant would be sought upon his return.
The Tribunal did accept that depending on the time of his return, he might be detained over a weekend. He may well incur a fine under Sri Lankan law for leaving unlawfully.
The Tribunal considered that the consequence of a short-term detention and a moderate fine did not amount to serious harm for the purposes of qualifying as a refugee. Furthermore, the consequences were the result of the application of a law of general application. The law was not discriminatory and did not select the applicant based on any Convention criteria. The Tribunal concluded:
98. The Tribunal is not satisfied that the scale of the fine is such that it amounts to serious harm. Further, the Tribunal considers that the evidence indicates that anyone who has left Sri Lanka illegally may be subject to a fine for doing so and there is also no evidence of differential treatment in the application of the fine.
99. The Tribunal is not satisfied that he will be imputed with a political opinion because he has left illegally or singled out or treated differently because he is a member of a particular social group of failed asylum seekers or any other particular social group.
100. The Tribunal considers that factors in relation to returnees apply to anyone who has left Sri Lanka illegally. The Tribunal is not satisfied therefore, that questioning, arrest, and the poor conditions in remand amount to systematic and discriminatory conduct as required by s.91R(1)(c). Furthermore, the Tribunal does not accept that any of this amounts to persecution for a Convention reason. The Tribunal considers that the elements of the processing of returnees, and any penalties to which the applicant may be subjected, will be applied on a non discriminatory basis under a law of general application.
101. Accordingly, having considered all the evidence in relation to the situation for returnees, the Tribunal considers that despite the large numbers of reported involuntary returnees to Sri Lanka, there is very limited evidence of returnees suffering mistreatment, either upon their arrival or following return to their villages. The Tribunal is not satisfied the applicant has any particular profile such that there is a real chance of serious harm upon his arrival or the fact of his illegal departure from Sri Lanka, and the authorities' awareness that he has applied for asylum in a Western country and has lived in a Western country for some time.
THE REVIEW IN THE FEDERAL CIRCUIT COURT
On 12 May 2015, the applicant applied to the Federal Circuit Court for review of the decision of the Tribunal. The application was made seven days late but the Federal Circuit Court extended the time for the bringing of the application. In the Federal Circuit Court, the applicant was represented by counsel.
Before the Federal Circuit Court, the applicant relied on four grounds.
The first ground alleged that the applicant was denied procedural fairness because the Tribunal used a report dated 6 February 2015 from the Department of Foreign Affairs and Trade (DFAT), which was not put to the applicant. The Federal Circuit Court rejected this ground as follows:
35. The basis of the Tribunal's rejection of the Applicant's claims of political involvement, was the Tribunal's adverse credibility findings in respect of the Applicant. The 2015 DFAT Country Report had no bearing on those findings. The Tribunal said "that it did not accept the applicant was of any interest to the UFPA and/or SLFP or the Sri Lankan government because of his imputed or actual political activity in Sri Lanka". There was thus no real chance that the Applicant would be persecuted upon return.
The second ground of review alleged that the Tribunal failed to take account of the contents of two articles, one in The Australian and one in the Morning Herald, after saying that it would look at these articles. The Federal Circuit Court rejected this ground of review as follows:
37. The Tribunal member responded to the above saying he will "definitely have a look at those [articles]". On a fair reading of the Tribunal's decision, it is not apparent the Tribunal failed to have regard to the contents of those articles. The Tribunal's consideration of the matters raised in these articles appears throughout its decision record and as referred to in paragraphs 24 to 27 above. It cannot be said that the Tribunal failed to consider the reports. Even if I am wrong about that, it cannot be said the Applicant suffered a lost opportunity to put any other information or argument to the decision-maker in circumstances where the Tribunal, in its decision record, effectively considered the submissions made by the Applicant that people had been harmed in Sri Lanka; that asylum seekers had made allegations of torture; and that asylum seekers had been held in custody for more than a short period of time. In the consideration of those matters the Tribunal made findings open to it on the evidence before it including that the Applicant would not be subject to a custodial sentence and the prospect of him being detained for a long period was remote.
The third ground alleged that the applicant was denied procedural fairness because the Tribunal failed to put to the applicant that the letter from the candidate was not authentic. The Federal Circuit Court rejected this ground of review as follows:
39. This ground also must fail. What in essence the Applicant says is that he should have been given a further opportunity to provide further evidence by way of submissions or otherwise to explain evidence that he had placed after the hearing before the Tribunal, and being evidence which went to the reliability of the evidence given by him at the Tribunal hearing, and in his prior statements.
40. The Applicant, given the delegate's decision in particular, was acutely aware of the relevant issues for consideration, which included adverse credibility findings against him. Further, the Tribunal had put the applicant on notice about its concerns as to forged documents coming out of Sri Lanka.
41. I accept the submission of Counsel for the First Respondent that it cannot be said the Tribunal's approach failed to comply with the requirements of s.424AA or 424A of the Act. "Information", for the purposes of those sections, does not include the existence of doubts, inconsistencies or the absence of evidence. Further, it "does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps..."
[Footnotes omitted]
The final ground of review alleged that the Tribunal had failed to comply with Ministerial Direction No. 56, in contravention of s 499(2A) of the Migration Act, when dealing with the claim for complementary protection. The Federal Circuit Court rejected this ground at [29]-[32], finding that the Tribunal acted as it had said at [19] of its decision as follows:
19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT Country Report Sri Lanka 16 February 2015) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
THE PROCEEDING IN THE FEDERAL COURT
On 31 March 2016, the applicant filed an application in this Court. He applied for an extension of time within which to appeal. The time for appeal is 21 days from the date of the judgment of the Federal Circuit Court, pursuant to rule 36.03(a) of the Federal Court Rules2011. Consequently, an enlargement of time of 122 days was required.
The applicant filed an affidavit in support of the application, affirmed on 31 March 2016. He said that when the judgment of the Federal Circuit Court was given, he did not understand that he could appeal. The applicant does not speak English. He was assisted on this application by a Sinhalese language interpreter. Curiously, his affidavit at [4] says, “I do not speak English”, and there is nothing on the affidavit to suggest that it was translated for him. The affidavit sets out the basis of the criticisms of the decision of the Tribunal and the judgment of the Federal Circuit Court as follows:
12. The review in the Federal Circuit Court took into account irrelevant matters, facts and evidence and failed to take into account relevant facts, matters and evidence.
13. The RRT and/or the Federal Circuit Court hearing and decision is unreasonable in all the circumstances of the case and cannot be allowed to stand.
14. The RRT and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration to and weight to the evidence presented by me.
15. The RRT and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it summarily dismissed and discounted the evidence presented by me.
16. The RRT and/or the Federal Circuit Court erred in law and/or in fact, and thereby fell into jurisdictional error, when it misapplied the law, regulations, policy and guidelines in deciding and determining whether I was a genuine refugee and that I had a genuine fear of persecution.
17. The Federal Circuit Court failed to take all of the above into account and thereby erred and as such its decision to dismiss my appeal is wrong in law and/or in fact and/or unreasonable.
It was quite clear on the hearing of the application that the applicant had no idea what those paragraphs meant. This affidavit stated at [18] that the applicant was submitting a draft notice of appeal:
…which gives particulars of the appealable errors made by the Federal Circuit Court and the RRT upon which I seek to appeal.
No such document was filed. However, on 27 July 2016, an amended application for extension of time was filed. The application contained two grounds as follows:
1.His Honour erred in not finding that the applicant should have been given a further opportunity to provide further evidence by way of submissions or otherwise to explain evidence that he had placed after the hearing before the Tribunal.
2.His Honour erred in finding that the applicant was put on notice during the hearing that the Tribunal had concerns as to forged documents coming out of Sri Lanka also applied to documents submitted after the hearing.
There are three matters normally considered relevant to the consideration of an application for an extension of time within which to appeal. First, the applicant should provide an explanation for the delay. Second, the court will consider whether there is prejudice to any other party that would arise from the grant of the application. Third, the court will consider whether there is merit in the argument to be advanced on appeal.
In the present case, this final factor is determinative of the application. Although far from convinced that there is a reasonable explanation for the delay, I am prepared to proceed as if there were such an explanation. Regarding the second factor, the Minister does not claim any prejudice to him arising out of any extension of time being granted.
However, it is futile to extend the time within which to appeal if the appeal is doomed to fail. In view of the fact that the applicant did not understand the documents which he filed, he was asked the basis upon which he said the Tribunal and the Federal Circuit Court had erred. He said that he had told the complete truth to the Tribunal. It was explained to him that it was not the role of the Court to determine the merits of his application but that the Court exercised a supervisory role over the legality of the Tribunal’s decision-making processes.
The proposed grounds of appeal set out in the applicant’s affidavit do not disclose any basis upon which the appeal could succeed. The grounds are expressed at such a high level of generality, without particularisation, that they could not in that form provide a basis for a successful appeal. The explanation provided by the applicant did not advance the issues.
The first ground stated in the amended application for an extension of time is not particularised in a way which discloses any arguable basis for the appeal.
The second ground of the application might be taken to reflect the third ground of review argued before the Federal Circuit Court, concerning the letter from the candidate in the municipal election. As recorded earlier in these reasons, the Federal Circuit Court dealt with this matter at [39] to [41] of its judgment. No error is disclosed in the reasoning of the Federal Circuit Court in that passage.
Consequently, the applicant has not established any basis for the likely success of an appeal if time were to be extended. The application for an extension of time must therefore be refused.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 1 August 2016
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