AZADX v Minister for Immigration

[2014] FCCA 1060

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZADX v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1060

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application for extension of time for review – where application 38 days out of time – where applicant informed by migration agents of 35 day time limit – where applicant stated as reasons for delay, poor English and no legal or community group assistance until recently – whether applicant has arguable case that Tribunal fell into jurisdictional error – whether to grant extension of time.

Legislation:  

Migration Act 1958 (Cth), ss.36(2)(aa), 65, 425, 477

Applicant: AZADX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 227 of 2013

Judgment of: Judge Raphael

Hearing date: 12 May 2014

Date of Last Submission: 12 May 2014

Delivered at: Adelaide

Delivered on: 12 May 2014

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Mr S McDonald

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application for extension of time refused.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 227 of 2013

AZADX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Sometime between May and July 2012, the applicant, who is a young male Tamil citizen of Sri Lanka, arrived in Australia as an unauthorised boat arrival. On 17 September 2012 he applied to the Department of Immigration for a protection (Class XA) visa under s.65 of the Migration Act 1958 (Cth)[1].  A delegate of the Minister refused to grant the protection visa on 9 November 2012.  The applicant then applied for a review of that decision from the Refugee Review Tribunal.  He was invited to a hearing by the Tribunal which he attended together with his migration agent.  On 17 May 2013 the Tribunal determined to affirm the decision under review. 

   [1]     “Act”

2. Upon receipt of a decision from the Refugee Review Tribunal an applicant is entitled to seek judicial review of that decision from this court. An application is required under s.477 to be brought within 35 days of the receipt of the original decision. In this case the application was made on 29 July 2013 which, the Minister's representatives advise the court, is 38 days out of time. The court has power, under s.477 of the Act to extend time for the bringing of these applications provided that the applicant makes a written application for an extension and provides an affidavit of evidence explaining why the delay occurred. In his application there is a written request for an extension and grounds are set out there. The applicant states:

   “(1)My English proficiency is poor.  I did not know I had to apply for judicial review within 35 days.  With the limited support in terms of bringing the case to judicial review, was very difficult.

   (2) I cannot get a lawyer to fill this set of forms for me.  I could not find Tamil community or the refugee supports groups in Adelaide to assist me until recently.

   (3)I am aware that I am late by a few days, and I am extremely sorry for this.  Please accept this application.”

3. In court today the applicant told that he had received a copy of the Tribunal decision from his migration agents and that they had advised that an application for judicial review had to be made within 35 days so it cannot be said that he was totally unaware of this requirement.  On the other hand the Court understands how difficult it is for persons who speak little or no English to obtain assistance in order to complete these forms.

4. There is a second ground upon which a Court considers whether or not the extension of time should be granted and that is if it can be shown that an applicant has a reasonably arguable case for the relief he seeks.  It is the view of the Court that where such evidence is available the Court should be generous in its grant of relief, bearing in mind the seriousness of a refusal in respect of which there is no appeal when an applicant may be in danger of his life should he be required to be returned to his country of origin.

5. In this case the applicant made a number of claims for a protection visa.  These are set out in short form between [79] and [86] [CB 224].  Apart from the generic claims that the Court is familiar with from young male Tamils from Sri Lanka, the applicant had some specific claims based upon an imputed opinion of him as an LTTE sympathiser arising out of certain events that occurred in 2002, 2004, 2008 and 2012.  The generic claims that the applicant had related to what he believed would occur to him should he return to Sri Lanka including what would occur based upon him having applied for asylum and having left Sri Lanka illegally.

6. These are all matters which the Refugee Tribunal encounters on a regular basis and it is not surprising that, in dealing with them, it relies upon the independent country information obtained by the Tribunal itself and, in the majority of cases, considers that the treatment of returnees does not involve either a real risk of serious harm as required under the Convention or a real risk of significant harm as required under s.36(2)(aa) of the Act which deals with claims for complementary protection. The views of the Tribunal in this case followed that course having heard from the applicant and having considered the evidence put forward by his migration agents and weighed up the conflicting evidence of various human rights organisations against the evidence of certain State institutions including those from Post in Sri Lanka.

7. In regard to the applicant’s specific claims, the Tribunal came to the view that it could not accept the truth of some of these, in particular, the claims made in relation to certain incidents which occurred in 2008.  The Tribunal accepted the applicant’s evidence that he was briefly held, questioned and beaten by the Sri Lankan Army in 2002 and 2004:

   “[94]However, I have noted that on the applicant’s evidence these encounters were of short duration and did not produce any subsequent contacts or repercussions.  I consider that the incidents described by the applicant in 2002 and 2004 were routine in nature, and I do not accept that there would be any record of these encounters, or that even if there were, the encounters were of any significance so as to create or enhance the applicant’s profile as a person with LTTE connections.…”

   [95]In relation to the incidents and events of 2008 recounted by the applicant, I do not accept that these events occurred at all.  I do not accept that the applicant’s friend was killed by the Sri Lankan Army due to links with the LTTE, and I do not accept that the Sri Lankan authorities were then seeking out the applicant as a consequence.  I do not accept that officers from the CID came to the applicant’s house on multiple occasions looking for him.” [CB 225 - 226].

   At [99-102] the Tribunal notes that it does not accept the applicant’s claim to have been present at the Chilaw protests in 2012. 

8. The Court explained to the applicant at hearing that its duties lay in consideration of the way in which the Tribunal reached its decision rather than the evidence that the applicant had put forward as to why he should be considered a person to whom Australia had protection obligations. It explained to the applicant that the matters that it would take into account upon looking at the decision record were whether the applicant had been invited to and was able to attend a hearing in accordance with s.425 of the Act, whether the Tribunal had given him procedural fairness during the course of that hearing and whether the Tribunal had taken into account all relevant material and not taken into account any irrelevant material.

9. The applicant appeared to have difficulty in understanding these concepts, which is not unexpected.  He insisted on explaining to the court why he had claims to be a refugee.  In accordance with its usual practice the Court has considered the Tribunal’s decision record in some detail and has come to its own view, supported by the helpful written submissions of the respondent, that no jurisdictional error is revealed on the face of the document.  In these circumstances any leniency that might have been provided to the applicant in relation to the delay in bringing the application would be of little utility.  The order that the Court will make in this case is that the application for extension of time be refused.  I order the Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  26 May 2014