Azr15 v Minister for Immigration

[2018] FCCA 2284

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZR15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2284

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal.

PRACTICE & PROCEDURE – Application for extension of time – failure to satisfy procedural condition precedent to Court’s power to extend time.

Legislation:

Migration Act 1958, ss.36, 474, 477

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: AZR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1573 of 2015

Judgment of: Judge Cameron

Hearing date: 19 June 2018

Date of Last Submission: 19 June 2018

Delivered at: Sydney

Delivered on: 19 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A. Keevers of Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,416.00.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1573 of 2015

AZR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Sri Lanka who arrived at the Cocos Islands as an irregular maritime arrival on 10 August 2012.  On 5 December 2012 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Sri Lanka because of his ethnicity and imputed political opinion.  On 13 January 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent for a review of that departmental decision but on 15 April 2015 was unsuccessful.  

2. On 11 June 2015 the applicant applied to this Court for judicial review of the Tribunal’s decision. The application was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (“Act”) and the applicant therefore requires an extension of time within which to bring this proceeding.

3. However, the application filed in this proceeding did not seek an extension of time and so the application must be dismissed.

APPLICATION TO AMEND

1. On 18 June 2018 the applicant provided to the Court documents which he wished to file, one entitled “Amended Application for Judicial Review” and another entitled “Applicant’s Outline of Submissions”.  It should be noted that only the “Applicant’s Outline of Submissions” contained an allegation of jurisdictional error on the part of the Tribunal. 

2. The application to amend was refused on the basis that the proposed amended application did no more than reassert the applicant’s claim to be entitled to a protection visa, rather than raise issues of potential jurisdictional error, and the submission document’s allegation of jurisdictional error concerned an alleged failure to consider a matter which, on examination of the Court Book which was exhibit A, did not appear to have been propounded to the Tribunal, or earlier, as a matter material to the applicant’s claims.  The applicant was unable, upon the Court’s request, to identify where the matter alleged in the submissions document had been raised by him prior to the matter coming before the Court.

3. Neither the “Amended Application for Judicial Review” nor the “Applicant’s Outline of Submissions” contained an application for an extension of time or a suggestion that the applicant wished to seek an extension. 

APPLICATION FOR AN EXTENSION OF TIME

1. Section 477 of the Act provides the time limit which applies to proceedings for judicial review of Tribunal decisions in respect of which this Court has jurisdiction. At the time of the Tribunal’s decision, it relevantly provided:

   477 Time limits on applications to the Federal Circuit Court

   (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)    In this section:

   date of the migration decision means:

   …

   (b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); …

2. Because the Tribunal’s decision was dated 15 April 2015, the applicant had until 20 May 2015 to commence this proceeding.  The application was not filed until 11 June 2015 and so it was brought out of time.

Application in writing citing reasons

1. The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether an application has been made to the Court for an extension of time. As already noted, no such application was made in the initiating application. Consequently, an important condition precedent to the engagement of the Court’s power to grant an extension of time has not been satisfied.

2. It should be recorded that at the commencement of this proceeding, it was noted to the applicant that an issue in this matter was the fact that he needed an extension of time to bring the case and that as none of his documents sought an extension of time, it appeared that his action had to fail.

Interests of the administration of justice

1. In the circumstances, it is not strictly necessary to consider the second question posed by s.477(2), but it is nevertheless appropriate to do so in the event that it might be thought that the case that the applicant brings to the Court has some merit which was not considered by the Court.

2. The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend time. Usually that question is determined by considering whether the applicant has provided a satisfactory explanation for his or her delay in commencing the proceeding, and whether the allegations made in support of the application for constitutional writs have sufficient merit that the Court should consider them at trial.

Satisfactory explanation for delay

1. The applicant told the Court that he had filed the proceeding late because he was living in Darwin at the relevant time and had had to come to Sydney to file his application.  He said that this was in circumstances where he was unable to access help, whether of friends or of legal representatives, the latter difficulty apparently being exacerbated by a lack of funds.  The applicant’s submissions on these questions were not particularly clear.  Nevertheless, because the Minister did not seek to cross-examine the applicant on these matters which were advanced from the bar table, I am prepared to accept that the lateness of the application arose out of the difficulties the applicant said he had had in filing it and to find as a consequence that he has provided a satisfactory explanation for the three week delay in commencing the proceeding.

Merits of substantive application

1. In relation to the question of the merits of the substantive application, it should be noted that in proceedings for judicial review of a Tribunal decision, the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would conclude it to be in the interests of the administration of justice to extend the time within which to bring a proceeding, it is necessary that an applicant demonstrate that his or her case has sufficient merit that the Court should consider it at a trial. It does not seem to me that the case which the applicant would wish to raise demonstrates such a quality.

Claims for protection

1. The applicant’s written claims were set out in his statutory declaration dated 28 November 2012 and in submissions to the Tribunal dated 25 March 2014, 16 March 2015 and 9 April 2015.

2. The applicant also provided oral evidence at his entry interview on 24 September 2012, at a departmental interview on 10 May 2013 and at a Tribunal hearing on 27 February 2015 and 11 March 2015.

3. As summarised by the Minister in his written submissions, and subject to small corrections, the applicant relevantly made the following claims:

   7. The applicant’s claims to fear harm were set out in a statutory declaration made on 28 November 2012. Those claims may be summarised as follows:

   7.1 The applicant claimed to be of Tamil ethnicity and of Hindu faith. He had been brought up in a Tamil village that was the main prawn farming area in Sri Lanka. When the Sri Lankan Army (SLA) took over the nearby port, the applicant and his family were forced to relocate to Thambachetti.

   7.2 The applicant’s parents were taken for random questioning by the SLA on numerous occasions. The applicant was also taken in for questioning by the SLA on a number of occasions, during which he was asked about his knowledge and involvement with the Liberation Tigers of Tamil Eelam (LTTE). The applicant witnessed other Tamil boys being beaten, and some of those boys disappeared.

   7.3 The applicant decided to cease his education in year 11, because he was stopped by the authorities “all the time” on the way home from school. The applicant started working, with the hope that this would stop the authorities from hassling him.

   7.4 In December 2007, the applicant was returning from a job when he was stopped by the SLA. The SLA took the applicant to their headquarters where he was beaten with a stick and interrogated. He was accused of being an LTTE supporter. The applicant was released after his father attended the SLA headquarters, but was required to report to the SLA [every week] until 2010.

   7.5 In 2011, the applicant commenced working as a fisherman with his father. They were frequently stopped by the SLA. The SLA would regularly “round up” young Tamils from the applicant’s village. The applicant feared that he would disappear as others had from his village. Following his arrival in Australia, the applicant learned from his parents that the SLA had attended his house in Sri Lanka and interrogated his parents as to his whereabouts. The applicant feared that as a young male Tamil, he would be accused of being a supporter of the LTTE and that the authorities might kill him. [He also feared harm because of his illegal departure from Sri Lanka].

   8. … The applicant also advanced a new claim [at his interview with the delegate] that the SLA were searching for him on account of his uncle’s association with the LTTE (References omitted)

4. During the Tribunal hearing, and as recorded by the Tribunal in its decision record, the applicant also claimed that in the period after 2010 he was frequently rounded up with others and questioned by the army about his LTTE involvement.  He also claimed that he and his uncle were once attacked.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.

2. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I also adopt:

   10. The Tribunal accepted that the applicant was questioned about LTTE involvement in 2007, that he was physically harmed in the encounter, and that he was required to report weekly to the SLA for three years.

   11. However, the Tribunal found the applicant’s evidence about his uncle being in the LTTE to be “unsatisfactory” and [his explanation for the delay in raising this claim was]“inconsistent,” and was not satisfied that the uncle (if he existed) was a member of the LTTE or in a rehabilitation camp, that he was the cause of adverse attention to the applicant, that he or the applicant were beaten by the authorities, or that the uncle had disappeared.

   12. On the basis of the applicant’s response to the s.424A letter, the Tribunal accepted that he was stopped and questioned post-2009 while fishing and for security checks. However, the Tribunal formed the view that the applicant’s evidence in relation to being regularly rounded up and questioned from 2010 to be “inconsistent … cast[ing] doubt on his credibility”.

   13.Having regard to its “overall credibility concerns” and its finding that authorities had not had any specific interest in the applicant since 2010, the Tribunal was not satisfied that the applicant’s parents had been “interrogated” by the SLA about the applicant’s whereabouts since his departure for Australia.

   14.On the basis of country information before it and its anterior factual findings, the Tribunal found that the applicant would not be of adverse interest to authorities, and was not satisfied that there was a real chance he would suffer serious harm because of:

   14.1 the applicant being a young Tamil male from a former LTTE-held area;

   14.2 compliance with fishing licence and pass requirements; or

   14.3 discrimination on the basis of his ethnicity.

   15. The Tribunal was not satisfied that the applicant faced serious harm because of his Tamil ethnicity and imputed political association, or for being a young Tamil male from a former LTTE-held area. The Tribunal was not satisfied that the applicant would be imputed with a pro-LTTE opinion on the basis of his ethnicity alone. Nor did the Tribunal consider that the applicant’s illegal departure from Sri Lanka or that he would return to Sri Lanka as a failed asylum seeker would result in him being imputed with a pro-LTTE opinion.

   16. On the basis of country information before it and the applicant’s personal circumstances, the Tribunal did not consider that the applicant having lived overseas would result in him being imputed with links to the LTTE.

   17. Given the significant number of asylum seekers who have returned to Sri Lanka and having considered country information, the Tribunal found that the applicant did not face a real chance of being detained on return for “more than several days”, and that such temporary detention would not be as a result of any [discriminatory or persecutory process]. In any event, the Tribunal found that any harm experienced in detention would not amount to persecution.

   18. The Tribunal also considered the applicant’s illegal departure. The Tribunal accepted that the applicant would be charged with an offence under the Immigrants and Emigrants Act (I&E Act), and that he may be held for “as much as a fortnight in jail on remand” before being given bail. The Tribunal did not accept that a Convention reason would be the “essential and significant reason” for the applicant spending up to a fortnight in jail on remand and being fined. The Tribunal considered that being charged under the I&E Act and being detained on remand would be the result of the “non-discriminatory enforcement of a law of general application”. (References omitted)

3. In addition, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(aa) of the Act for the following reasons which were summarised by the Minister:

   20.In assessing the applicant’s risk of harm under the complementary protection criterion, and having regard to its anterior findings of fact, the Tribunal did not consider that the applicant would be imputed with a political opinion of association with the LTTE or have any other characteristic that would give rise to a real risk of significant harm. Nor did the Tribunal consider there was anything in the applicant’s personal circumstances (beyond the issues already addressed) that would create a real risk of significant harm based on [generalised] discriminatory treatment.

   21.The Tribunal assessed the risk of harm to the applicant on the basis of being a failed asylum seeker and leaving Sri Lanka illegally to be “remote,” and found that the imposition of a fine did not amount to significant harm. The Tribunal also considered the risk of the applicant being detained for an extended period to be “remote”, and did not accept that spending up to a fortnight in jail amounted to significant harm or would be “intentionally inflicted”. The Tribunal therefore did not accept there was a real risk the applicant would suffer significant harm because of poor prison conditions. Nor did the Tribunal accept that there was a real risk the applicant would suffer significant harm when contacted by authorities on return home. Having considered the applicant’s claims both singularly and cumulatively, the Tribunal was not satisfied the applicant faced a risk of significant harm. (References omitted)

Grounds for judicial review

1. In his application commencing this proceeding the applicant alleged:

   1.     RRT Decision is unsupported by any evidence.

   2.     RRT did not deal with my problem.

2. As for the first of those allegations, it can be quickly seen from the foregoing summary of the material before the Tribunal that, indeed, the Tribunal did have evidence upon which to base its findings.  In that connection, it is worth noting that the Tribunal’s summary of the material before it extended over 31 paragraphs of its decision and that that material was then discussed and analysed in a further 102 paragraphs where country information was also set out. 

3. Further, it should be noted that the allegation was not particularised and so the applicant has not pointed to any particular finding by the Tribunal which was unsupported by the evidence.  All he has done is say that the entirety of the Tribunal’s decision was unsupported by any evidence, a contention which is really not arguable.

4. The second allegation, that the Tribunal did not deal with the applicant’s “problem”, was also unparticularised and for that reason lacks meaningful substance.  The applicant has not identified any claim advanced by him when his application was before the Department and his review was before the Tribunal, which was not considered by the Tribunal in its decision.  It is not apparent that any was. 

5. For these reasons, it does not appear that the application would have sufficient merit to justify its consideration by the Court at a final hearing, even were the applicant to have sought an extension of time within which to bring the proceeding. 

CONCLUSION

1. As the first of the two conditions precedent to the engagement of the Court’s power to extend time in this proceeding has not been satisfied, the Court has no power in this case to extend time and, as a consequence, no jurisdiction in this matter. 

2. The application filed on 11 June 2015 will be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 16 August 2018