AWG15 v Minister for Immigration
[2015] FCCA 3070
•18 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWG15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3070 |
| Catchwords: MIGRATION – Protection (Class XA) visa – application to extend time – whether tribunal’s decision affected by jurisdictional error – where no error in tribunal’s decision – application dismissed. |
| Legislation: Migration Act1958 (Cth), ss.36(2)(a), 36(2)(aa), 91R, 91S, 474(2), 476, 477(1), 477(2) |
| Cases: Kamal v Minister for Immigration (2002) 126 FCR 467 |
| Applicant: | AWG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 462 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 21 August 2015 |
| Date of Last Submission: | 21 August 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 18 November 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Siong & Li Lawyers |
| Solicitors for the First Respondent: | Sparke Helmore |
The second respondent entered a submitting appearance.
ORDERS
The name of the second respondent be amended to ‘Administrative Appeals Tribunal’;
The application for an extension of time within which to commence judicial review proceedings constituted by:
(a)the application filed on 27 May, 2015;
(b)the application filed on 17 July, 2015; and
(c)the application in a case filed on 19 June, 2015
be dismissed;
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 462 of 2015
| AWG15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By his amended application filed on 17 July, 2015, the applicant seeks an extension of time under s.477(2) of the Migration Act1958 (Cth) Act within which to bring an application for judicial review of a decision of a refugee review tribunal given on 19 February, 2015 that affirmed a decision of a delegate of the first respondent to refuse the applicant a Protection (Class XA) visa.
The tribunal’s decision was given to the applicant on the 20 February, 2015. The applicant filed his initiating application on 27 May, 2015. The 35 day time limit imposed by s.477(1) had well expired by the time the applicant filed his application.
The applicant’s original application filed on 27 May, 2015 was doomed to fail. Although he sought the requisite extension of time within which to bring the applicant, the grounds of that application were insufficient. His amended application attempts to remedy that defect. Additionally, presumably so that it is clear, the applicant also filed an application in a case on 19 June, 2015 seeking the extension of time within which to bring his principal application.
The first respondent opposes the application. The second respondent enters a submitting appearance.
Both parties have filed written submission to which I have paid regard. Further, both the applicant’s lawyers and the first respondent’s lawyers made oral submissions in support of the application.
For the reasons that follow, the application for an extension of time must be dismissed.
Background
The applicant is a Sri Lankan national. He arrived in Australia as an unauthorised maritime arrival on 10 August, 2012. On 21 March, 2013 the first respondent’s department received the applicant’s application for a Protection (Class XA) visa.
A delegate of the first respondent refused that application on 10 October, 2013. The applicant applied for a review of that decision by a refugee review tribunal.
Supplementary to the applicant’s visa application was a statutory declaration detailing the following claims by the applicant:
a)in 2008 he lived in Chilaw where he began supporting Shantha Sisira Kumara Abeysekara, his United National Party representative. In that year he became an assistant to Shantha and continued to support the party, including leading activities to promote the party;
b)in December, 2009 the UNP office in Chilaw was bombed by the Sri Lankan Freedom Party, the government at the time. The applicant was not in the office during this incident. Shantha complained to the police and authorities but was told he should not challenge the government;
c)on 26 January, 2010 Sanath Nisantha, a member of parliament in the SLFP arrived at his house with fifteen other men. Some of these men forcefully took his voting card and dragged him to a nearby car where Sanath threatened him;
d)as a result of this incident the applicant feared attending the election so originally stayed at home, but Shantha convinced him to go and vote. In the evening of the election the applicant went to Shantha’s house. There he was telephoned by his wife saying that stones had been thrown at their family home. Following the election the SLFP remained in government for another term. The SLFP targeted members of supporters of Shantha and two of the applicant’s colleagues from the UNP went missing. The applicant feared for his safety. He would stay at Shantha’s house during the day and at friends’ houses at night;
e)on 15 February, 2010 the applicant and other UNP members rallied in protest against the wrongful imprisonment of UNP’s General Foneska in Chilaw, and on 20 February 2010 in Colombo;
f)on 17 February, 2010 members of the SLFP forcefully entered the applicant’s home enquiring about him. They returned the following day and at that time his wife gave them his mobile number. The SLFP subsequently contacted and threatened him;
g)in March, 2010 the SLFP found the applicant in the home of a Tamil person. They took him to an unknown location where he was detained for one day by being tied to a tree. The SLFP proceeded to torture the applicant, urinate on him and burn him with cigarette butts. A member of the SLFP recognised the applicant from school and released him. From there he went to live in Negombo. He was not pursued by the SLFP there;
h)the SLFP continued to visit his family home every Saturday asking about the applicant’s whereabouts;
i)in May, 2011 the applicant’s wife gave them his telephone number. The SLFP contacted the applicant and told him to show his face;
j)in June, 2012 his uncle told him that the SLFP had come to speak to a member of parliament in Negombo about him. He remained in hiding in Negombo. In July 2012 the applicant fled to Australia;
k)in October, 2012 the SLFP went to his uncle’s home looking for the applicant. His uncle was beaten.
The applicant made further claims in his protection visa interview:
a)the applicant’s family were being abused since the applicant left Sri Lanka due to the applicant’s involvement in the 2010 election;
b)in June, 2013 people went to his home and put a gun to his son’s head, however his father intervened;
c)on another occasion they cut up the family dog;
d)the father died as a result of the stress of the incident;
e)on another occasion they attempted to rape the applicant’s wife.
On 10 October, 2013 a delegate of the first respondent refused to grant the visa.
On 18 October, 2013 the applicant sought review of that decision by a refugee review tribunal. On 10 December, 2014 and 23 December, 2014 the applicant appeared before the tribunal to give evidence and present arguments. He was assisted by an interpreter and was represented by a migration agent
During the tribunal hearing the applicant made several additional claims:
a)on three or four occasions at night, opposition political members would throw stones at his house;
b)the opposition political members threatened him over the phone about three times a day;
c)in December, 2009 to January, 2010 when walking the streets, opposition political members would drive towards him quickly, hit him and then drive away.
On 15 January, 2015 the tribunal invited the applicant to comment on or respond to information. On 29 January, 2015 the applicant, through his legal representatives, provided a response.
On 19 February, 2015 the tribunal affirmed the decision not to grant the applicant the visa.
The tribunal’s decision
The tribunal did not believe most of the applicant’s claims and it did not believe that the applicant held a genuine fear of harm if he returned to Sri Lanka.
The tribunal found significant and numerous inconsistencies with the applicant’s evidence and that of country information, which caused the tribunal to doubt the credibility of the applicant. The tribunal ultimately found that the applicant had not been truthful about his political activity and interest in Sri Lanka, his reasons for leaving or his fears about returning to Sri Lanka.
The tribunal was largely persuaded by the applicant’s lack of knowledge of basic and general political events and facts, inconsistencies with the applicant’s claims and the implausibility of critical events to the applicant’s claim.
The tribunal:
a)did not accept the applicant’s claims of being politically active in assisting his UNP MP in the 2010 Presidential election campaign, and of supporting the UNP. The tribunal found these claims to not be credible;
b)did not find credible the claims that the applicant had been harassed, threatened, assaulted or kidnapped by the local ruling party MP and his supporters;
c)considered the applicant’s evidence was at times contradictory and evasive on substantive points. It also considered that the applicant was unable to support his claims with a satisfactory level of detail, knowledge or explanation;
d)found the applicant’s claims regarding place of residence was initially inconsistent and that this contradicted his claim to have fled to Negombo in early 2010;
e)found the applicant was inconsistent about how long he stayed with Shantha after he left his home in January, 2010;
f)found that the applicant lacked basic knowledge that someone with his claimed experience would be expected to have;
g)found that the applicant was not able to demonstrate the knowledge someone with his claimed political profile and activities would be expected to have;
h)found that the applicant lacked basic knowledge about the 2010 presidential election – inconsistent with his claimed high level of political activity and involvement in the election;
i)found that the evidence the applicant gave about when he started helping with the campaign was inconsistent with country information;
j)found that the applicant was unable to provide information about elections that country information suggest occurred during his claimed involvement with the UNP in 2009;
k)found the applicant had an inexplicable lack of both knowledge and interest in the political career of Shantha, and that his evidence that Shantha was a member of the national parliament was inconsistent with country information describing him as a provincial council member;
l)found the applicant gave confused, vague and inconsistent evidence regarding when he commenced receiving threats from the opposition party, the attack and threat made on the presidential election day and his movements after the election and why he stayed at Shantha’s house and at friends’ houses;
m)found the applicant’s evidence about attending protest rallies was inconsistent with country information and inconsistent with his evidence that he feared the local opposing party;
n)found the applicant’s evidence concerning the opposition party’s approaches to his wife to be inconsistent and confused;
o)found the applicant’s account of his kidnapping and assault in March 2010 was implausible;
p)found the applicant gave inconsistent evidence about his time in Negombo;
q)found the letter purportedly written by Shantha to not be genuine and was given no weight;
r)found the letter written by the priest to be vague and general and of no evidentiary value;
s)found that the departure laws of Sri Lanka are general in application and the enforcement does not constitute persecution;
t)did not accept that the local ruling party in Chilaw would pursue him to Negombo and want to harm him more than two years after he left Chilaw;
u)did not accept that his family had been threatened or harassed by the opposing party members;
v)did not accept that any pain and suffering caused to the applicant whilst in detention would amount to significant harm or that such conditions would be intentionally inflicted or intended to cause humiliation;
w)was not satisfied that there was any risk of serious or significant harm to the applicant arising out of any of his past activity or political profile in Sri Lanka.
Consequently, the tribunal was not satisfied that the applicant was a person to which s 36(2) of the Act applied.
Whilst the tribunal accepted that upon return to Sri Lanka the applicant would be questioned, charged and bailed for his illegal departure it did not accept that there was a real chance of mistreatment of returnees in detention.
The tribunal was not satisfied that as a foreseeable consequence of the applicant returning to Sri Lanka there was a real risk that the applicant would suffer significant harm in terms of s 36(2)(aa) of the Act.
The application for an extension of time
Section 477(1) of the Act requires an application to be made within 35 days of the tribunal’s decision. Section 477(2) provides the Court power to extend this time limit as the Court considers appropriate if the Court ‘is satisfied that it is necessary in the interests of the administration of justice to make the order.’
In his written submissions, the first respondent referred me to Quan v Minister for Immigration and Border Protection [2013] FCA 1239. The applicant’s legal representatives took no issue with the passage upon which the first respondent urged me to rely. At [22] of Quan Farrell J outlined the established method by which a court should approach an application for extension of time:
The principles relevant to consideration of whether to grant or dismiss an application for extension of time are well established: they are the length of delay, the explanation for the delay, the presence or absence of prejudice to the respondent and the merits of the proposed appeal: Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176; (1984) FCR 344 at 348-9; Singh v Minister for Immigration and Citizenship [2010] FCA 500 at [16].
The tribunal’s decision was made on 19 February, 2015. The application was required to be lodged by 26 March, 2015 in order to meet the statutory time limit of 35 days pursuant to s.477(1) of the Act. The application was in fact lodged on 27 May, 2015, some 62 days late.
In his affidavit sworn 18 June, 2015 the applicant swears that he appointed Sirus Migration as his solicitors to make and file his application for judicial review to this court on 16 March, 2015. He paid them the fee demanded by them to commence his proceedings. However, Sirus Migration failed to commence the proceedings within time.
The applicant claims to have been informed, for the first time, on 16 April, 2015 that his application had not been lodged. His information came from a text message from the Department of Immigration.
The applicant made inquiries of the firm that he had instructed to prepare and make his application. He was told that the solicitor who was handling his matter had gone on holidays. The applicant remonstrated with people from the firm, obtained a refund of some of the fees paid to them and instructed new lawyers.
However, it was not until some 33 days later on 19 May, 2015 that the applicant approached his current lawyers, who filed his initiating application on 27 May, 2015.
The applicant submits that his failure to observe the time limit was due to no fault on his part, but was the fault of his lawyers at the time. As such he claims that the failure to meet the time limit was something that was beyond his control and for which he was not responsible.
The respondent submits that there is no adequate explanation for the delay between the applicant becoming aware on 16 April, 2015 that his application had not been lodged and engaging his current lawyers on 19 May, 2015. The first respondent submits that an applicant does not require a lawyer to file an application.
Further, the first respondent submits that there is another unexplained delay of one week between the applicant instructing his new lawyers and the commencement of these proceedings.
I accept the submission of the first respondent. Whilst the delay between the handing down of the tribunal’s decision and the expiry of the time limit to bring judicial review proceedings is explained, the applicant has not provided any explanation for the delay between 16 April, 2015 and 27 May, 2015 when the application was commenced. This is a substantial length of time – 41 days.
The first respondent did not establish or assert any prejudice to him if the extension of time was granted.
The final consideration the Court will have regard to when determining whether it should grant an extension of time is the merits of the challenge to the decision under review. I have considered and discussed the grounds of review with relation to the substantive application below. For those reasons I do not believe the application has merit.
The grounds of review
The applicant’s lawyers sought to have me consider evidence that bore upon the merits of the applicant’s claims and the second respondent’s decision that was not before the second respondent when it dealt with the applicant’s review. Two grounds were relied upon to suggest that I could accept and consider the material.
First, it was argued that the tribunal ought to have requested such further information from the applicant or ought to have further verified or investigated the information it was given. The material that the applicant now wished to rely upon would have been available to the tribunal had it made a request for it, or looked for it itself.
Second, it was submitted that the Court under certain circumstances may consider evidence that was not before the tribunal. I pressed the applicant’s solicitor for some authority to support the approach that she urged me to adopt, but none was forthcoming.
Neither ground relied upon by the applicant justified the receipt of the material that the applicant sought to put before me.
Finally, it was submitted that during the tribunal review process the applicant was not aware that he was permitted to submit certain evidence, including but not limited to photographs supposedly in support of his claim. However:
a)there was no evidence before me that the applicant did not know those matters; and
b)in any event, the applicant was represented before the second respondent by a legal representative. His representative made post-hearing submissions to the tribunal.
No proper basis for the receipt of the further material was demonstrated and I rejected it.
It was put to the applicant that the tribunal in its reasons sets out at length the claims made by the applicant, the information provided by the applicant at the hearing and the post-hearing submissions. In oral submissions the applicant conceded that the tribunal accurately recorded all of the applicant’s claims. The solicitor for the applicant suggested that the tribunal misunderstood some of the claims. But she was unable to specify which claims were misunderstood.
Ground 1
This ground is set out in the applicant’s amended application as follows:
(1)that the Second Respondent erred in finding lack of credibility on the applicant’s account with incorrect consideration in making decision with regards to:
1) the applicant’s place of residence;
2) the length the applicant stayed with the MP Shantha’s house
3) the applicant’s political involvement ;
4) the applicant’s lack of knowledge about 2010 presidential election;
5) the applicant’s lack of knowledge about the political career of the UNP MP Shantha Abeysekara
6) the threat;
7) the bombing;
8) the applicant’s attendance in protest rally against Fonseka’s arrest is inconsistent with his claimed level of fear;
9) the kidnapping;
10)letter by Shantha Abeysekara; and
11)letter by parish priest of Welimada.
This ground seeks to impugn the tribunal’s assessment of the applicant’s credit. The arguments raised by the applicant suggest that the tribunal was guilty of “incorrect consideration in making decision”.
Before considering the specific matters referred to by the applicant, it is worth recounting the words of Mansfield J in Kamal v Minister for Immigration (2002) 126 FCR 467 at [36]:
It is not for the Court, on reviewing a decision of the tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the tribunal, or upon any such view to conclude that the tribunal’s assessment of the applicant’s claims should not have been made. Those evaluative processes are for the tribunal. … The Court is not empowered to review the tribunal’s decision on the merits. It is confined to the ascertainment of reviewable error in terms of s 476(1) of the Act.
Further, at least in relation to the finding of facts, in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146], Kenny J reminded us:
A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) 197 CLR 611]
Finally, tribunals are not required to accept uncritically any and all claims made by applicants (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596). Nor must tribunals present controverting evidence before dismissing a particular assertion (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348).
The applicant’s written submissions traversed each of the specific matters set out in ground 1 of the grounds of review. The submissions sought to demonstrate why the tribunal’s findings about that particular matter were in error. But in doing so, the applicant successfully demonstrated that ground 1 of his proposed application for review takes issue with the merits of the tribunal’s decision and raises no jurisdictional error.
As to the first and second of the matters with which the applicant takes issue, the tribunal said at paragraphs [35] and [36] of its reasons:
35. The applicant was initially inconsistent about his place of residence which contradicted his claim to have left his home and then fled to Negombo in early 2010. In providing the details of where he had lived and when, he clearly stated that he lived at his home in Seddawatha in Chilaw until October 2010. He later changed his evidence to state that he left home in January 2010. When the contradiction was put to him he stated he had thought the Tribunal was asking where his wife and children lived, not where he himself had lived. The Tribunal does not accept his explanation because during the relevant exchange it was clear that the Tribunal was asking about the applicant personally, not his family, as his responses also clearly indicate.
36. The applicant was somewhat inconsistent about how long he stayed with the MP Shantha after he left his home in January 2010. He initially stated he stayed with Shantha for a “short time”, “two months”. However later in the hearing he stated that he went there on 26 or 27 January and left there in the “late 20s” of February, that is, about four weeks.
The applicant contends that the tribunal was wrong to conclude that his evidence was inconsistent as the tribunal suggested. However, the approach taken by the tribunal to the applicant’s claims about his residency was open to it. There is nothing remarkable about the tribunal’s treatment of this evidence. The tribunal’s view about the consistency of the evidence with other information and evidence is, absent illogicality or irrationality, something with which this Court cannot interfere. Determinations about consistency are a matter for the tribunal and interference by this Court would be to interfere with the tribunal’s fact finding function: MZYIC v Minister for Immigration & Anor [2010] FMCA 712 at [9].
With respect to the third matter – the applicant’s political involvement as justification for the threats of harm that he had received - the applicant argues that the tribunal “failed to consider the applicant’s overall statement regarding his political involvement”. I infer an assertion that the tribunal failed to consider the applicant’s claims cumulatively, although this was not articulated.
In NAOI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 383 at [21] Tamberlin J said:
… it is hard to see how, if it is found that there is no substance in any of the individual claims, there could be any higher alternative claim based on a cumulative series of negative findings. Second, on a fair reading of the reasons for decision, it is clear that the RRT had regard to the totality of the evidence before it …
The tribunal considered all of the applicant’s claims of political involvement. On each occasion the tribunal expressed its doubt having regard to the inconsistencies in his claims and evidence, the vague nature of his claims as assessed by the tribunal and confusion in the claims and evidence generally.
What is clear from the tribunal’s reasons is that it appreciated each of the circumstances relied upon by the applicant to advance his claims based upon his involvement in politics. The tribunal carefully considered each one, but disregarded them for the reasons explained by the tribunal in its detailed decision.
Given that each of the individual circumstances relied upon by the applicant were discounted by the tribunal, there could have been no different result if the tribunal had expressed that it had considered all of the applicant’s claims about these matters cumulatively.
The fourth and fifth matters pointed to by the applicant concern the tribunal’s lack of satisfaction with the claimed knowledge of the applicant about Sri Lankan politics. The tribunal was troubled by the apparent lack of depth of the applicant’s understanding of that subject.
As to his lack of knowledge about the 2010 presidential elections, the tribunal said:
39. The applicant also lacked basic local knowledge about the 2010 presidential election he claimed to have campaigned actively and continuously for since either mid-2008 or 2009. Despite claiming to have campaigned in the Puttalam district he was unaware of the number of electoral divisions in Puttalam for the presidential election. When asked about this he stated it was “a lot” and that he could not say and had “no idea”. When asked the result in the Puttalam division he stated he didn’t remember and that it was sufficient for them to just know the result in the ‘major’ divisions such as Chilaw and Anamaduwa. Yet he then stated that Puttalam was ‘the’ major division. When country information7 was put to him that there were only five electoral divisions in the Puttalam district and that the UNP coalition candidate, Fonseka, had won the majority of votes in the Puttalam division of the district the applicant merely stated he had no concern about other electorates. The Tribunal finds the applicant’s lack of awareness of rather basic and important information about the 2010 presidential election in his area inconsistent with his claimed high level of political activity and involvement in that election.
As to his lack of knowledge about General Fonseka, the tribunal said:
38. The Tribunal considers that the applicant was not able to demonstrate the knowledge and detailed information someone with his claimed political profile and activities would be expected to have. The applicant spoke of being involved in election campaigns, public rallies and meetings, and canvassing the electorate to promote the UNP and it Presidential candidate, Fonseka, almost daily for more than a year. Country information shows that Sarath Fonseka was the common candidate in the 2010 Presidential election for a coalition of opposition parties which included the UNP, JVP, and TNA.5 However the applicant was unable to state which coalition the UNP was part of in putting forward a candidate for the 2010 Presidential election, nor who any of the other coalition partners were. He confirmed that Fonseka was the candidate for “an alliance of different parties” but gave very evasive responses when asked who the parties were. He also stated that Fonseka did not belong to any party but when country information was put to him that Fonseka belonged to the New Democratic Front party the applicant then changed his evidence to state Fonseka belonged to the People’s United Front party.
The tribunal paid considerable attention to these matters in its reasons. I will not set out all of the tribunal’s reasons. However, it is sufficient to say that the tribunal thoroughly explained why it was sceptical about the applicant’s claims concerning his involvement in Sri Lankan politics. In my view, there was no error in the way in which the tribunal went about assessing these matters.
In oral submissions the solicitor for the applicant said that the tribunal’s decision was “limited to its own information about Australian political culture and did not consider what would be the general knowledge of politics in Sri Lanka”. However, the applicant’s solicitor conceded that no submissions were made to the tribunal to the effect that the particular political culture in Sri Lanka demanded a particular approach by the tribunal. The applicant was afforded ample opportunity to present his arguments to the tribunal.
Again, the claims to these two matters seek to remonstrate with the tribunal’s approach to its fact finding function and the findings that it made. There is nothing remarkable about the tribunal’s approach to either matter.
The sixth, seventh, eighth and ninth matters to which the applicant has pointed do not warrant separate consideration. They have been dealt with by the tribunal in an unremarkable way. The tribunal carefully considered the applicant’s claims and other evidence. It put to the applicant its concerns about his evidence and determined them against him. No error is demonstrated in the way in which the tribunal went about assessing these claims.
The final two matters matter to which the applicant refers deals with letters of support for the applicant, the first by Shantha Abeysekara, the politician for whom that applicant claimed he worked and the second by the parish priest for Welimada. The applicant suggests that the tribunal has come to the wrong conclusion that the first letter was not consistent with the applicant’s evidence or available country information. The tribunal said:
57. The Tribunal has serious concerns about the genuineness of the letter purportedly written by Shantha Abeysekara, which was submitted by the applicant. As put to the applicant under s.424A of the Act the letter is not consistent with the applicant’s evidence or available country information. Although the letter describes Shantha Abeysekara as a “Member of Parliament’, as later confirmed by the applicant and the country information Mr Abeysekara is not a member of parliament but is a provincial council member. The letter also describes the applicant as “taking part in all the political campaigns of the UNP” which contradicts the applicant’s own evidence that he was just active in the 2010 Presidential election. According to the latest DFAT report “Document fraud is prevalent in Sri Lanka due in part to the lack of computerised databases to store information.” In view of the serious concerns the Tribunal has about the letter the Tribunal does not accept it is genuine and does not give it any weight.
As to the second letter, the tribunal said:
58. The applicant also submitted a letter purportedly from the parish priest of Welimada. Publicly available maps show Welimada to be about 200 kilometres from Chilaw in the centre of Sri Lanka. It was put to the applicant that this information somewhat contradicts the letter’s contents that the applicant has been known to the priest for about 15 years to which the applicant responded that the applicant got to know the priest when he would visit Chilaw. In any event the Tribunal finds the letter extremely vague and general in its description of the applicant’s problems and finds it of no evidentiary value.
There is nothing remarkable about the approach of the tribunal to this evidence. The tribunal assessed the evidence against the applicant’s own claims and external information available to the tribunal. That another tribunal, or this court, might come to a different conclusion about the weight that might be given to the letters, is not to the point. That is not the test. The question of the weight to be given to evidence and the interpretation of that evidence is a question of fact for the tribunal. Again, questions of illogicality or irrationality aside, this Court cannot interfere with the tribunal’s findings about such matters.
When the tribunal’s reasons are read in their entirety it is clear that the tribunal considered the applicant’s arguments individually and came to a conclusion as to whether or not it should accept the applicant’s claim to protection. The tribunal evaluated the credibility of the applicant’s claims. It decided many of them against the applicant.
The first ground of the applicant’s proposed review application does not demonstrate any jurisdictional error on the tribunal’s part.
Ground 2
The proposed second ground of review is set out as follows:
2) the Second Respondent reached conclusion about the applicant’s lack of credibility because of actual or apprehended bias which has breached natural justice principles especially having regards to the letter by Shantha Abeyseara and parish priest of Welimada
The first respondent directed the court to Applicant A165 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 877 where Lander J said:
59. Actual bias is not easily proved. It requires proof that the decision maker was biased and that the decision maker approached his/her function with a closed mind and so firmly closed that, notwithstanding whatever evidence or arguments were put before the decision maker, the decision maker’s predetermined decision would not vary. To determine whether a decision maker is biased requires an examination of that person’s subjective state of mind.
The applicant suggests that the tribunal’s approach to the letters written by Shantha and the parish priest demonstrate bias on the part of the tribunal. The tribunal considered the letters but afforded them no weight. The tribunal gave its reasons for this.
Having regard to all the materials available to this court, being the transcript of the tribunal hearing, the written submissions of the parties and the tribunal’s reasons, there is not the least bit of evidence that supports an allegation of actual or apprehended bias on the part of the tribunal. The evidence before me leads to the conclusion that the review was conducted fairly.
The proposed second ground is also devoid of merit.
Ground 3
The proposed third ground of review is set out as follows:
3) the Second Respondent misconstrued the meaning of persecution in finding there will not be any risk of serious or significant harm to the applicant arising out of any of his past activity or profile in Sri Lanka, alternatively, this finding in unsupported by evidence which is critical to the ultimate determination.
This ground has two limbs. The first is that the tribunal misconstrued the meaning of persecution. There is nothing in the submissions, both oral and written, which, in my view, support this ground.
As the first respondent submits, the tribunal outlined the applicable tests in relation to the Convention and Complementary Protection criteria. The tribunal has done so correctly, with respect. In my view, there is nothing to suggest that the tribunal misconstrued the meaning of persecution.
The tribunal addressed the applicant’s claimed fear of harm as a result of his political views and, separately, as a result of his illegal departure. The tribunal concluded, after an assessment of those claims that they were not made out.
The second limb alleges that the tribunal found that the applicant would not be at risk of serious or significant harm due to his political profile without supporting evidence. However, the tribunal rejected the applicant’s claimed fear of harm based on his claims. Having rejected those matters, the tribunal could not have come to any other conclusion.
There is no merit to this proposed ground.
Conclusion
There is a lack of explanation for the delay in commencing the proceedings for judicial review. The relevant delay is that which followed upon the applicant becoming aware that a judicial review application had not been commenced in time.
However, more than that, his proposed application for judicial review, in my view, has no merit.
In those circumstances, I am not satisfied that it is in the interests of the administration of justice to grant the extension of time for which the applicant applies.
All outstanding applications are dismissed with costs.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 18 November, 2015.
Associate:
Date: 18 November 2015
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