Axm15 v Minister for Immigration and Border Protection
[2018] FCA 1186
•13 August 2018
FEDERAL COURT OF AUSTRALIA
AXM15 v Minister for Immigration and Border Protection [2018] FCA 1186
Appeal from: Application for extension of time: AXM15 v Minister for Immigration & Anor [2016] FCCA 2861 File number: QUD 50 of 2018 Judge: COLLIER J Date of judgment: 13 August 2018 Catchwords: MIGRATION – application for extension of time – application for protection visa refused – where Tribunal found claims were fabricated – where significant delay in filing notice of appeal from Federal Circuit Court to Federal Court – whether medical condition sufficient to explain delay – where no satisfactory explanation given for delay – whether merit in proposed grounds of appeal – where grounds of appeal lack merit – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2), 36(2)(aa), 65
Federal Court Rules 2011 (Cth) rr 36.03, 36.05
European Convention on Human Rights. Opened for signature 4 November 1950. 213 UNTS 221 Art 3. (entered into force 3 September 1953) (formerly the Convention for the Protection of Human Rights and Fundamental Freedoms)
Cases cited: Kalashnikov v Russia [2002] ECHR 596; (2003) 36 EHRR 34
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405
Date of hearing: 17 May 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms L Helsdon of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
QUD 50 of 2018 BETWEEN: AXM15
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
13 AUGUST 2018
THE COURT ORDERS THAT:
1.The application for extension of time filed on 22 January 2018 be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
THE APPLICATION
Before the Court is an application under r 36.05 of the Federal Court Rules 2011 (Cth) (the Rules). The applicant seeks to extend the time within which he can file a notice of appeal against a decision of the Federal Circuit Court that was delivered on 19 September 2016 and amended on 14 October 2016. The Federal Circuit Court dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) (the Tribunal), to affirm the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse to grant the applicant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant in a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 18 July 2012. He applied for a Protection (Class XA) visa on 10 December 2012, which was refused by the Minister’s delegate on 10 December 2013.
The basis of the applicant’s claim for a protection visa was that the applicant claimed to fear harm from authorities as his sister was killed in the 2006 Action Against Hunger massacre in Mutur, along with 16 others who were killed, and his family had lodged a human rights commission complaint in relation to the alleged murder. The authorities pressured the applicant’s parents to withdraw the complaint.
The applicant applied to the Tribunal for review of the decision. The Tribunal found that the applicant had fabricated his claims and did not consider that he was a witness of truth. This was because the applicant’s evidence was vague, limited and inconsistent with the applicant’s own account, his supporting documents and the country information available to the Tribunal.
Federal Circuit Court proceedings
The applicant filed an application to show cause in the Federal Circuit Court on 3 June 2015, and, subsequently, on 2 March 2016 filed a lengthy amended application which set out the following grounds of review:
1.The tribunal breached s424AA (b) (iii) and (iv) of the Migration Act. This section substitutes the s 422B (3) on the application of the exhaustive statements of requirements of natural justice.
…
a.Because of the wide discretion of the Tribunal with respect to natural justice, this section is the most important section that serves to ensure that the Tribunal conducts the interview in a fair, equitable, sympathetic and unbiased manner. The Tribunal Member though is ultimately controlled by the Government which sets out policies of the conduct of the interview. The Tribunal owes a duty to be unbiased and independent and not toe the policies of the government of the day. The conduct of the Tribunal in this matter is despicable, did not take note the emotional state of the applicant during the interview. The whole interview was centred on the assassination of his sister. She raised the topic of the assassination and asked detailed questions that caused him a mental breakdown. Rather than adjourning the interview because the applicant was visibly upset and sobbing, proceeded to continue with the interview after advising him to take a deep breath. To make matters worse, the Tribunal member made the decision that because of his credibility issues during the interview informed him that she had to decide that his sister who was killed was not his sister which made it worse. The Tribunal did not consider the consequences of her act with a result the Applicant attempted suicide twice, the last one by jumping off a bridge in the city into the Brisbane Rive. He was saved by two well-wishers, and was in coma for one day. Throughout the interview the applicant was sobbing.
b.Tribunal failed to put under s424AA questions relevant to the documents, considering the authenticity of the documents which is critical to favourable consider the application.
c.The Tribunal questioned the applicant on the details of the death (murder) of his sister, knowing that it is a traumatic event to him and it made an adverse decision on the basis he was unable to recollect accurately.
d.The Tribunal rejected the applicant’s application predominately on his lack of credibility in correctly answering of the time based questions and failed to consider the long process of time between the recall and the incidents as well as events too traumatic for the applicant to recall events that would have possible suppressed his memory.
e.The Tribunal came to a conclusion, because the applicant was not arrested for 3 years (despite being told by the Applicant that he was evading the police by constantly moving residence and authorities had been coming to his home regularly to look for him) the authorities were not looking for him and that he was at no risk and would not qualify under complementary protection provisions. This is like saying that the authorities are not looking for a prisoner having escaped on the run for years (as happened in Australia).
2.Tribunal erred in law by failure of taking into relevant consideration in making the decision.
Particulars: (inter alia)
a.The Applicant provided 18 documents that supported his case. The Tribunal failed to consider these documents and relied predominately on the bad memory recall of the Applicant, to discredit the documents. The Tribunal had not taken into consideration the critical information in all the documents, purely on the basis that the Applicant was unable to recall accurately details description of the evens. Neither did the Tribunal question the applicant sufficiently to arrive at any decision. The Tribunal took preference to the bad memory recall of the applicant to the corroborating evidence for the events that applicant stated had happened.
b.The Tribunal mentioned only two documents in the interview and did not raise any questions on the others failed to consider the documents.
c.The Applicant in the final stages of the interview informed the Tribunal that he was so distressed throughout his life after the death of his sister, that he attempted suicide while in Rockhampton and was in coma for one day in a Rockhampton Hospital. The Tribunal member lacked empathy, was casual, without care and unsympathetically advised the applicant to seek medical help. This information that the Applicant was suffering alone would be sufficient for any normal person to understand the vulnerable position of the applicant to accept that the interview as not conclusive.
3.The Tribunal took into consideration irrelevant information to make a decision.
Particulars: (inter alia)
a.The Tribunal took particular note of the newspaper report that described the applicant sister’s death, based upon the information presented by the applicant’s other sister which differed from the statement of the applicant and therefore the applicant was not telling the truth. The Tribunal filed to note that the statement in the paper was a hearsay and its truth was not verified, whereas the statement by the applicant is not a hearsay. The Tribunal concluded that the woman who had the same surname as the Applicant is not his sister.
4.Particulars (inter alia)
a.The Tribunal rejected the applicant’s application predominately on his lack of credibility in correctly answering of the time based questions and failed to consider the long process of time between the recall and the incidents as well as events too traumatic for the applicant to recall and possibly supressed his memory.
5.The Tribunal failed to consider the bad emotional state of the applicant when she raised the matter of the applicant sister’s death and instead of terminating the interview and adjourning to another time or date, or at least changed the topic to allow him to recover, proceeded to question him on the same subject and cause further emotional injury to him, to the extend he was not answering the question, but stammering and sobbing throughout the interview. The Applicant states that the interview was unjust, cruel and totally unacceptable and the contents should not be used to make the decision.
6.Complementary Protection Provision:
In considering the Complementary protection provisions under the Migration Act, the Tribunal failed to consider the traumatic events suffered by the applicant in deciding that the applicant had credibility issues and that had no genuine fear of return to Sri Lanka despite the fact the he attempted suicide three times and admitted to hospital.
Particulars
a.There is a complaint against the authorities on the group assassination the members of an NGO organisation which includes the sister of the applicant. This complaint was made by the international organisation and both the applicant and his family are witnesses. The investigations are still continuing and the applicant evidence will be crucial to the findings. The applicant was already been targeted by the authorities while he was in Sri Lanka, make him flee to Qatar so as to let the matter die, but on return was pursued by the authorities that led him to flee to Australia. The tragic events suffered by the Applicant and the seeking of him by the authorities is strong evidence even to a layman that the applicant will be detailed, arrested upon arriving in Sri Lanka, and made to disappear without trace. This practice still goes on. There is a change of Presidency but not government.
The primary Judge rejected each of the applicant’s grounds of review, stating:
·In relation to ground 1(a): the applicant was assisted by a migration agent at the hearing and the Tribunal considered that the applicant was able to participate meaningfully in the hearing and to communicate effectively.
·In relation to ground 1(b): the Tribunal was not required to disclose its subjective thought processes or determinations to the applicant and was not required to disclose to the applicant the Tribunal’s adverse credit findings in its letter pursuant to s 424A of the Act.
·In relation to ground 1(c): the applicant was attempting to engage the Court in merits review. The Tribunal was entitled to ask the applicant questions during the hearing so that it could satisfy itself of the claims made.
·In relation to ground 1(d): the Tribunal specifically indicated that it had considered the applicant’s mental state, and also did not reject the applicant’s claims primarily or predominately because of the applicant’s answers to time-based questions.
·In relation to ground 1(e): the applicant’s argument was misconceived and the applicant was essentially attempting to engage the Court in merits review.
·In relation to ground 2: the Tribunal was under no obligation to comment on every pieces of evidence produced by the applicant or every item of material before the Tribunal.
·In relation to ground 3: matters of weight given to certain evidence were for the Tribunal to determine and the Tribunal was permitted to consider whatever material it wished during the review, provided that to do so was not prohibited or forbidden.
·In relation to ground 4: the applicant’s complaint did not amount to jurisdictional error for the same reasons given by the primary Judge in relation to ground 1(d).
·In relation to ground 5: the Tribunal hearing was conducted in an appropriate manner, for the reasons identified in relation to ground 1(a).
·In relation to ground 6: the Tribunal made it clear in its reasons for decisions that it had given consideration to the past traumatic events referred to by the applicant, and that the Tribunal gave consideration to the criteria in s 36(2)(aa) of the Act.
The primary Judge dismissed the application for review of the Tribunal’s decision.
Application for extension of time to appeal to the Federal Court
In determining whether to grant an extension of time, the Court is to have regard to the following:
·the extent of the delay;
·the explanation for the delay provided by the applicant;
·any prejudice to the respondent(s); and
·whether there is merit in the proposed grounds of appeal.
Length and explanation for the delay
Under r 36.03 of the Rules, an appellant is required to file and serve a notice of appeal within 21 days after the date when the orders or judgments were pronounced. The last date on which the applicant could have duly filed a notice of appeal was 10 October 2016. The length of the delay is therefore 469 days, which is significant.
The applicant affirmed an affidavit on 29 May 2017 outlining the reasons for his delay in seeking to appeal against the decision of the Federal Circuit Court. Relevantly, the applicant deposed:
4.The Federal Circuit Court Judge Howard made his decision on 19 September 2016 amended on 14 October 2016. The reason I did not file an appeal to the Federal Court until now is:
a)I suffer from mental health problems – see report of Dr Dineen [sic] which is annexed to this affidavit. My mental health problems make it difficult for me to make decisions.
b)When I lost my case in the Federal Circuit Court, I felt very stressed and I did not know what to do. However, recently, some friends encouraged me to appeal to the Federal Court.
Annexed to his affidavit is a report by Dr Anthony Dinnen dated 6 March 2017. Dr Dinnen states that:
… [the appellant] presents clinically with clear cut evidence of chronic post traumatic stress disorder with associated major depressive disorder.
The nature of this psychiatric condition is such that it will interfere with his ability to give a clear history, to give a good account on himself, to be able to deal with bureaucratic procedures in an efficient and capable manner as might be expected from someone who is in a normal state of mind. His obsession and preoccupation with these traumatic circumstances in Sri Lanka is pervasive at interview and I believe he needs ongoing support in order to cope with his attempts to remain in Australia …
The Minister submits that this report does not provide an adequate explanation in circumstances where it is dated some months after the deadline for the filing of an appeal and does not specifically detail the applicant’s inability to file an appeal by the relevant date.
The medical evidence of Dr Dinnen is not disputed by the Minister, and I accept that the mental health of the applicant may interfere with his ability to deal with bureaucratic procedures, including pursuing an appeal from a decision of the Federal Circuit Court to this Court. However, this does not explain why the applicant waited for more than a year to appeal the primary decision. I am not satisfied that the explanation provided by the applicant concerning his health accounts for such a lengthy delay as occurred in this case.
Prejudice to the respondents
The Minister does not assert that any particular prejudice was caused by the delay.
Draft notice of appeal
The applicant has prepared a draft notice of appeal which is annexed to his application for an extension of time. The draft notice includes the following proposed grounds of appeal:
1.The Refugee Review Tribunal, after finding in paragraphs 73 and 74 of its decision that the appellant may be “placed in the remand section of the Negombo prisons” for up to two weeks on his return to Sri Lanka and “conditions in Sri Lanka’s prisons are generally poor, overcrowded and unsanitary”, continued at paragraph 89 that “pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is [not] ‘intentionally inflicted’ on prisoners within the meaning of ‘cruel or inhuman treatment or punishment in s 5(1) of the Migration Act 1958 (Cth). The Tribunal erred in its construction of the term “intentionally inflicted” in the definition of “cruel or inhuman treatment or punishment” in s 5(1) of the Migration Act. This was a jurisdictional error. The Federal Circuit Court erred in not identifying the jurisdictional error in its judgment.
2.The Tribunal failed to properly take into account the appellant’s mental health problems in the course of finding that he was not a witness of truth and rejecting his claims.
3.The applicant had requested during the hearing of the Tribunal that he need time to submit the birth certificates of himself and his father and the death certificates of his elder brother Anasley and his elder sister Romila. Despite my request the Tribunal member made a decision on 1 May 2015 within few days thereby affirming the decision of the delegates not to grant him a protection visa.
The Minister notes that, even if granted an extension of time, the applicant would still require leave to rely on proposed grounds of appeal 1 and 3 as these were not agitated in the Federal Circuit Court.
Consideration
The draft first ground of appeal relates to [73], [74], [88] and [89] of the reasons for decision of the Tribunal. These paragraphs read as follows:
73.The tribunal accepts if arrival occurs on the weekend, the returnee is placed in remand section of the Negombo prison until the bail hearing on Monday. The tribunal accepts he may be on remand until the Monday when he can go before a magistrate. The tribunal accepts there has been one report of a person held for two weeks on remand. The tribunal finds the most the applicant would be held is two weeks.
74.The tribunal has had regard to the conditions in the prison and accepts that conditions in Sri Lanka’s prisons are generally poor, overcrowded and unsanitary. The tribunal has considered the available country information in relation to the circumstances of individuals who are held in prison in Sri Lanka and notes the reports of torture and assault. However the tribunal considers it is prisoners who otherwise have a profile of being opposed to the current Sri Lankan government or LTTE profile who are targeted in this way. As discussed the tribunal does not accept he has such a profile.
…
88.The tribunal has also accepted that the applicant may be remanded in conditions which are cramped, uncomfortable and unsanitary, but the tribunal does not accept that spending up to a fortnight in such conditions amounts to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act or that he faces a real risk of suffering significant harm.
89.Further and in any event, the tribunal does not accept that such treatment is intentional as is required by the law in Australia. The tribunal does not accept on the evidence before it that pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. Neither does the tribunal accept that overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’.
The issue of whether poor prison conditions constitute “significant harm” for the purposes of s 36(2) of the Act, and in particular “cruel or inhuman treatment or punishment”, was considered by the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405. Section 5 defines “cruel or inhuman treatment or punishment” as an act or omission by which “severe pain or suffering, whether physical or mental, is intentionally inflicted on a person”.
In that case, the Tribunal had found that the conditions to which the appellants would be subjected when held on remand in Sri Lanka would be the result of a lack of resources rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or to cause extreme humiliation. The appellants had relied, inter alia, on the interpretation of Art 3 of the European Convention on Human Rights 213 UNTS 221 (that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”) by the European Court of Human Rights in Kalashnikov v Russia [2002] ECHR 596; (2003) 36 EHRR 34, to the effect that Art 3 had been violated by the gaoling of a prisoner for a long period in overcrowded and unsanitary conditions, notwithstanding that there had been no indication of a positive intention of humiliating or debasing the prisoner. The Full Court of the Federal Court found that the notion of “intention” incorporated into the definitions of cruel or inhuman treatment or punishment and of degrading treatment or punishment within the complementary protection regime was limited to a subjective intention to bring about the relevant outcome.
The High Court upheld this finding in SZTAL, concluding that “actual, subjective, intention” could not be proved in an oblique way merely by proving that the Sri Lankan official who would order the detention of the appellants would do so with knowledge of the consequences of his or her intended act. As Kiefel CJ, Nettle and Gordon JJ found at [26], and Edelman J found at [114], the reference in the Act to “intentionally inflicting” and “intentionally causing” pain or suffering is to the natural and ordinary meaning of the word “intends” and therefore to actual, subjective, intent. As Edelman J further explained at [114]:
The appellants could only have established “intention” within par (a) of the definition of “cruel or inhuman treatment or punishment” in s 5(1) of the Migration Act if the Tribunal accepted that a relevant Sri Lankan official acted in a way meaning, in the sense of having as an aim or purpose, that “severe pain or suffering, whether physical or mental” would be inflicted. This conclusion was rejected by the Tribunal.
In the present case, the reasoning of the Tribunal appears consistent with the principles explained by the High Court in SZTAL. No specific error in that reasoning has been identified in the draft grounds of appeal of the applicant – only that the Tribunal erred in its construction of the relevant terms and the primary Judge failed to detect that error.
In respect of the draft second ground of appeal the applicant states that the Tribunal failed to properly take into account his mental health problems in finding that he was not a witness of truth and in rejecting his claims. However, the Tribunal noted that it was mindful of the applicant’s stress and mental state, that he was upset at times during the hearing but the Tribunal reassured him and granted an adjournment, the Tribunal was careful in its questions, and the Tribunal spent some time clarifying the applicant’s evidence and prompting him.
In relation to draft third ground of appeal, there is nothing in the decision record indicating that the applicant or his representative requested an adjournment or additional time within which to provide further evidence at the hearing. At the hearing before me however the applicant stated that he wanted to provide the Tribunal with additional documentation about his relationships with his sister and brothers, that the Tribunal gave him two weeks to submit that additional information, but that although he collected the information he did not submit it within the time specified and the Tribunal made its decision shortly afterwards. By this submission it appears that the applicant is suggesting that there was unreasonableness on the part of the Tribunal in making its decision shortly after the expiry of the two week afforded to the applicant to provide the additional material. In my view such a suggestion is without foundation.
Conclusion
In circumstances where the draft grounds of appeal lack merit and the applicant has not provided a satisfactory explanation for the significant delay in seeking to appeal the decision of the Federal Circuit Court, the appropriate order is to dismiss the present application with costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 13 August 2018
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