Axm15 v Minister for Immigration and Border Protection - [2018] FCA 1186

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Axm15 v Minister for Immigration and Border Protection

Details

AGLC: Axm15 v Minister for Immigration and Border Protection [2018] FCA 1186
Case: [2018] FCA 1186
Decision Date: 13 August 2018

CaseChat Overview and Summary

The applicant, a non-citizen, sought an extension of time to appeal a decision of the Federal Circuit Court that dismissed their application for a protection visa. The Minister for Immigration and Border Protection opposed the application on the grounds of lack of merit and significant delay in filing the notice of appeal. The primary issue before the Federal Court was whether the applicant could be granted an extension of time to appeal the decision of the Federal Circuit Court, and if the proposed grounds of appeal had merit. The court also considered whether the applicant's medical condition could justify the delay in filing the notice of appeal.

The court held that the draft grounds of appeal lacked merit and the applicant had not provided a satisfactory explanation for the significant delay in filing the notice of appeal. The court found that the Tribunal had considered the applicant's claims and had made findings that the applicant's claims were fabricated. The court also noted that the applicant had not requested an adjournment or additional time to provide further evidence at the hearing, and had failed to submit the additional information within the time specified by the Tribunal. The court held that the Tribunal's decision was not unreasonable, and that the applicant's suggestion to the contrary was without foundation.

The court dismissed the application for extension of time with costs. The court noted 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. The court held that the proposed grounds of appeal lacked merit, and that the applicant had not provided a satisfactory explanation for the significant delay in filing the notice of appeal.

The court's decision highlights the importance of timely filing of notices of appeal and the need for applicants to provide satisfactory explanations for any delays. The court also emphasised the need for applicants to ensure that their grounds of appeal have merit, and that they are not merely rehashing arguments that were previously considered and rejected by the Tribunal. The court's decision serves as a reminder to applicants that the courts will not tolerate frivolous or meritless appeals, and that they will impose costs on applicants who bring such appeals.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.

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