Azr15 v Minister for Immigration & Anor (No.2)

[2019] FCCA 602

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZR15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2019] FCCA 602

Catchwords:
MIGRATION – Decision by Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Extension of time – whether time should be extended to applicant to file an application for judicial review – application for judicial review first sought in June 2015 – first extension of time refused – second extension of time sought more than 3 years later – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time.

PRACTICE & PROCEDURE – Abuse of process – whether application for an extension of time an abuse of the Court’s processes application for extension of time refused – abuse of processes – whether leave should be required for applicant to file any other document.

Legislation:

Migration Act 1958 (Cth), ss. 36, 477

Federal Circuit Court Rules 2001 (Cth), r.13.10

Applicant: AZR15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3374 of 2018

Judgment of: Judge Emmett

Hearing date: 11 March 2019

Date of Last Submission: 11 March 2019

Delivered at: Sydney

Delivered on: 11 March 2019

REPRESENTATION

Solicitors for the Applicant: Mr Senthil Sinnarajah
Sentil Solicitor and Barrister

Solicitors for the Respondents: Ms Bernadette Rayment
Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3374 of 2018

AZR15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By Application in a Case, filed on 23 January 2019, the first respondent seeks an order that the application filed by the applicant on 4 December 2018, seeking judicial review of a decision of the Refugee Review Tribunal dated 15 April 2015 be dismissed pursuant to r.13.10(a) and r.13.10(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) on the basis that the proceeding has no reasonable prospects of success and is an abuse of the process of the Court.

2. In support, the first respondent read the affidavit of Monica Kate Forrester Perotti, affirmed 21 January 2019, annexing various documents including the Tribunal’s decision record.

3. By its decision dated 15 April 2015, the Tribunal affirmed a decision of the delegate to refuse the applicant a protection visa on the basis that the applicant was not a person to whom Australia has protection obligations, either under s.36(2)(a) or under s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).

4. The procedural history of this matter is set out in the affidavit of Ms Perotti, which is as follows:

   “3. The applicant appeared before the Tribunal on 27 February 2015 and 11 March 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

   4. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

   7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear is unwilling to return to it.

   8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion').

   9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   10. The issue in this case is the credibility of the applicant and whether, on his accepted claims, he fulfils the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   11. The Tribunal's assessment is informed by information including: the Department's file relating to the applicant which includes the record of his entry interview conducted through a Tamil interpreter on 24 September 2012; the audio recording of his Department interview held on 10 May 2013, conducted through a Tamil interpreter, which the Tribunal has listened to; a copy of his Protection visa application form and documents provided in support of that application and the review application. The Tribunal's assessment is also informed by its detailed exploration of the applicant's claims when he appeared before it on 27 February 2015 and 11 March 2015. During those appearances he communicated with the assistance of a Tamil interpreter. The applicant's representative was present. Neither the applicant or his representative identified any limitations in the applicant's capacity to communicate with the Tribunal or participate in the review. The Tribunal has had regard to a range of independent information referred to in this decision and referred to in submissions by the applicant's adviser.

   Adviser’s submissions

   12. The applicant's adviser provided a submission to the Tribunal in advance of the hearing. Submissions are made with respect to persecution arising from race and imputed political opinion. The submission repeats the applicant's factual claims. A range of independent information is provided concerning the risk of those with links to the LTTE and the Sri Lankan government's desire to control and prevent dissent. Submissions are made with respect to persecution arising from membership of a particular social group as a failed asylum seeker from a western country. A range of independent information is provided concerning harm suffered and the risks to failed asylum seekers, including claims of harm suffered by returnees from the United Kingdom in 2012. Reference is made to returnees having to wait a prolonged period in detention prior to being subject to remand. Submissions are made with respect to the primary decision, in particular the finding that the applicant's uncle was not a member of the LTTE. Submissions are made with respect to the failure of the Sri Lankan government to provide protection, making reference to independent information. Submissions are made with respect to the fact that the applicant is not excluded from coverage of the Refugees Convention. Submissions are made with respect to the various Refugees Convention criteria, including the fact that the applicant's claims are well founded. Independent information is provided indicating that human rights abuses are still being regularly perpetrated in Sri Lanka and the risks to Tamils. Reference is made to the process of Sinhalisation. Reference is made to the Sri Lankan authorities failing to fulfill their international obligations in the aftermath of the civil war. Reference is made to military abuses in the North and the East. Reference is made to an undermining of the rule of law since the end of the civil conflict. Submissions are made with respect to the complementary protection obligations. It is submitted that the applicant faces a risk of arbitrary deprivation of life. It is submitted that the applicant faces harm from torture and that, in comparison to other returning Tamils the applicant has a much higher profile. It is submitted that the applicant faces harm from cruel, degrading and inhuman treatment or punishment as a result of him being a young Tamil male from a former LTTE area and that he has been previously detained by the authorities and accused of being affiliated with the LTTE. This creates a risk profile under which the applicant faces treatment including abuse which would cause extreme humiliation.

   13. A further written submission was provided by the applicant's adviser following the Tribunal hearing. The submission makes specific reference to credibility issues raised by the Tribunal. The submissions on credibility issues are dealt with in the Tribunal's consideration of the applicant's claims. Submissions are also made with respect to the recent DFAT Country Report – Sri Lanka, 16 February 2015. The Tribunal in the hearing made reference to this report and to particular sections, and gave the applicant's adviser time to make further submission on the report.”

5. The chronology demonstrates that the applicant sought judicial review of the Tribunal’s decision by application filed on 11 June 2015. That application was made more than 35 days from the date of the Tribunal’s decision and, accordingly, that application was incompetent unless, in accordance with s.477(2) of the Act, the Court was satisfied that it was necessary in the interests of justice to extend time to the applicant to allow him to seek judicial review of the Tribunal’s decision.

6. On 19 June 2018, as disclosed in the chronology, orders were made by the Federal Circuit Court dismissing the applicant’s application for judicial review and dismissing any application for an extension of time to seek judicial review.

7. On 6 July 2018, the applicant filed a notice of appeal in the Federal Court of Australia, seeking to appeal the orders made by the Federal Circuit Court on 19 June 2018.

8. On 20 November 2018, the applicant filed a Notice of Discontinuance of his appeal to the Federal Court of Australia.

9. The grounds relied upon in the 2015 proceeding in this Court by the applicant were as follows:

   “1. RRT decision is unsupported by any evidence

   2. RRT did not deal with my problem”

10. On 4 December 2018, the applicant filed a second application seeking an extension of time to seek judicial review in respect of the decision of the Refugee Review Tribunal, dated 16 April 2015. The applicant’s delay in seeking an extension of time is almost four years out of date.

11. The applicant’s grounds for the application for extension of time are as follows:

    “1. I am the Applicant.

    2. I enclose herewith a copy of the AAT's decision dated 15 April, 2015.

    3. I appealed from this decision to the Federal Circuit Court by way of Application dated 11 June 2015.

    4. I was unable to complete the Federal Circuit Application, and so I enlisted the assistance of a friend and an elderly lady from Sri Lanka, who both speak my language of Tamil. She told my friend what to write in the Application, and my friend then completed the form by writing what he had been told.

    5. I was unable to understand the questions in the Federal Circuit Application, and left it to them.

    6. Unfortunately, without my knowledge or understanding, the 35 day time limit for filing the Federal Circuit Application had expired, and so the question "Does the applicant apply for an Order that the time for making the application be extended under S 477 of the Migration Act 1951 ?" was incorrectly completed. My friend ticked the 'No' box instead of ticking the 'Yes' box on page 2.

    7. The judge in the Federal Circuit Court handed down his decision and dismissed the case because the Federal Circuit Court had no jurisdiction to hear the case, primarily because I did not apply to extend the time for filing my Application in writing as is required by S. 477(2) of the Migration Act.

    8. I enclose a copy of the Federal Circuit Court decision dated 16 August 2018.

    9. After my case was dismissed, I appealed to the Federal Court by way of Notice of Appeal, and also sought legal opinion as to the correctness of the judge's decision in the Federal Circuit Court. As a result of that advice, I withdrew my Notice of Appeal.

    10. I now file another Application, seeking an Order that the time for making the Application be extended, as should have been done before in the prior Application.”

12. The grounds upon which the applicant seeks judicial review of the Tribunal’s decision in his application, filed on 4 December 2018, are as follows:

    “1. The IAA erred in misunderstanding and/or in being too critical of the applicant's evidence /gave too much weight to apparent inconsistencies when it drew criticism from the answers and claims given/ made in his claims, and thereby came to a conclusion that no reasonable decision maker would have come to.

    Particulars

    i. The applicant said he was rounded up after 2010 [58]

    ii. The applicant made an entry indicating the approximate last time he was rounded up was in 2009 [59]

    iii. Submissions were made that he originally stated he did not recall the last time he was rounded up [60]

    iv. The IAA considered these answers are inconsistent which served to cast doubt on his credibility [62] [34]

    2. The IAA erred when it misdirected itself as to the ultimate question it has to answer.

    Particulars

    i. The IAA stated "The question for the Tribunal, however, is the real chance of serious harm in the future. What happened to the applicant during the course of the civil conflict is not indicative of what will happen to him in the future. The issue is the current profile of the applicant and whether there is adverse interest by authorities in him." [82]

    ii. The proper question the Tribunal had to answer was whether the applicant "has a well founded fear of persecution" as set out in S 5J of the Migration Act. If there is a real chance of persecution then his fear (assuming the applicant has a fear) would be well founded - Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Kirby J at [22] The issue is not limited to "the current profile of the applicant and whether there is adverse interest by authorities in him."

    iii. What happened to the applicant in the civil conflict is relevant to whether there is a real chance he will face persecution in the future. Chan's case

    3. The IAA erred when it misdirected itself and/or misunderstood its role and/ or the evidence when it stated "The Tribunal does not consider the fact that the applicant is a young Tamil male and comes from a former LTTE held area are factors which create a real chance of serious harm in the reasonably foreseeable future should the applicant return to Sri Lanka."

    Particulars

    i. The fact that the applicant is a young Tamil and comes from a former LTTE held area, when combined with other factors, may well demonstrate there is a real chance he would face persecution in the reasonably foreseeable future, and so it is incorrect for the IAA to have not considered these factors as being relevant

    ii. Ethnicity and geographical origin may have significance and relevance to the assessment of risk (ref UNHCR Guidelines [73])

    I propose to seek further legal advice on my FCC Application.

    I may file my Amended Application with further grounds and particulars once the Refugee Review Tribunal's CDs and transcript are available.”

13. The applicant was represented this morning by his solicitor, Mr Sinnarajah, who has been acting for the applicant since approximately July 2018. Mr Sinnarajah sought an adjournment at the outset of the hearing this morning on the basis that the applicant is presently in hospital, having recently undergone a laminectomy in respect of which there is a medical certificate. Mr Sinnarajah could put the request for an adjournment no higher than that the applicant wished to be here at the hearing so that he could obtain instructions.

14. Given the technical nature of the application before the Court this morning, I do not accept that there is any relevant contribution that the applicant could have made. The application for adjournment was not accompanied by a proposal that the applicant pay costs thrown away by any adjournment. As stated above, Mr Sinnarajah has been acting for the applicant for some nine months and, indeed, certified the application filed on 4 December 2018. That certification is in the following terms:

    “Lawyer's Certification (see section 486I of the Migration Act 1958)

    I, Santhil Rajan Sinnarajah, the lawyer filing this document commencing migration litigation, certify that there are reasonable grounds for believing that this migration litigation has a reasonable prospect of success.

    Signed

    Signature of the lawyer filing application

    Date: 04/12/18”

15. On 8 March 2019, being last Friday, Mr Sinnarajah filed on behalf of the applicant an Application in a Case seeking the following orders:

    “1. This Application to be heard on an urgent basis.

    2. All rules as to service be dispensed with.

    3. The hearing of this matter is listed for 11 March, 2019 be vacated.

    4. Any other Orders this Court deems fit.”

16. To the extent those orders intend to seek an adjournment of today’s hearing, for the reasons referred to above, that application is refused.

17. In considering the first respondent’s application, filed on 4 December 2018 to dismiss the proceeding as an abuse of process, I have regard to the applicant’s explanation for his delay of almost four years in seeking an extension of time to seek judicial review of the Tribunal’s decision dated 16 April 2015. The grounds identified by the applicant do not provide a satisfactory explanation for a delay of that time. The application for an extension of time is made in the context of the applicant’s initiating application for a judicial review, filed on 11 June 2015, which also required an extension of time to be heard.

18. That added factor only compounds the unsatisfactory nature of the explanation for the delay. The applicant gives no explanation at all for the delay between withdrawing the Notice of Appeal in July 2018 and filing the application on 4 December 2018. The applicant was not required for cross-examination. The grounds of judicial review identified in the application refer to the incorrect decision-making body.  The grounds refer to the Immigration Assessment Authority, when plainly, the decision is in respect of the Administrative Appeals Tribunal.

19. I invited the applicant’s solicitor to address each of the grounds in considering whether it was necessary in the interests of justice that time be extended to the applicant. The applicant’s solicitor did no more than recite the grounds and direct the Court to the relevant paragraphs referred to in the grounds.

1. Ground 1 appears to be an assertion that the Tribunal was too critical of the applicant’s evidence or gave too much weight to apparent inconsistencies. Those were said to be the applicant’s varying and inconsistent answers as to the date upon which he was rounded up with others. The applicant said variously; that he was rounded up with others after 2010, that he was rounded up in 2009, and, that he was not able to recall the last time he was rounded up. Ultimately, the Tribunal found the applicant’s evidence to be inconsistent and to cast doubt on the applicant’s credibility. Those findings would appear to be open to the Tribunal and are not without an intelligible foundation and neither do they appear to be legally unreasonable.

2. Ground 2 appears to assert that the Tribunal failed to consider if the applicant faced a real chance of persecution if returned to Sri Lanka and that in considering that question, the Tribunal confined itself to the current profile of the applicant and whether there was adverse interest in him by authorities. The Tribunal’s decision record makes clear that the Tribunal correctly identified the relevant matters it was required to consider in determining whether the applicant is a person to whom Australia has protection obligations, either under s.36(2)(a) or s.36(2)(aa) of the Act.

3. The Tribunal summarised the applicant’s claims in some detail and summarised various exchanges it had with the applicant about his claims.  The Tribunal also put to the applicant concerns it had about his evidence and noted the applicant’s responses. For example, the Tribunal put to the applicant that the fact that he had given inconsistent evidence as to the period in which he was being rounded up may cause the Tribunal to take an adverse view of his evidence. The Tribunal identified the aspects of the applicant’s claims about which it was not satisfied. 

4. However, the Tribunal ultimately comprehensively rejected the applicant’s claims of past harm for the reasons claimed. The Tribunal identified with specificity the country information to which it had regard, including referring in detail to the 2012 version of the United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines for Assessing International Protection Needs of Asylum Seekers from Sri Lanka.

5. The Tribunal then addressed in significant detail the various claims made by the applicant and appeared to make findings that were open to it on the evidence and material before it and for the reasons it gave. There is nothing before this Court to suggest that those findings were not logically probative of the issue of credibility or were tainted by any failure to afford procedural fairness or reached without a logical or probative basis. Nor do those findings appear to have been unreasonable or without an intelligible foundation. A fair reading of the Tribunal’s decision record appears to suggest that the Tribunal plainly understood the duty that it had, both in relation to the making of its decision and the conduct of its review.

6. Ground 3 asserts that the Tribunal misdirected itself, or misunderstood its role or the evidence, when it found that the applicant is a young Tamil male who came from a former LTTE held area but was not persuaded that those are factors which created a real chance of serious harm in the reasonably foreseeable future, should the applicant return to Sri Lanka.  The particulars in support of ground 3 assert that the fact that the applicant is a young Tamil and comes from a former LTTE held area, when combined with other factors, may have placed him at risk in the reasonably foreseeable future. Ground 3 asserts that those factors were not considered.

7. A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered in detail all the claims made by the applicant and, as stated above, appeared to make findings that were open to it on the evidence and material before it.

8. Whilst I make no final finding as to whether or not the decision of the Tribunal is affected by jurisdictional error, I am not persuaded that the application, filed on 4 December 2018, has sufficient prospects of success such that, in the context of the significant delay of almost four years in seeking judicial review and the procedural history of the matter, it would be necessary in the interests of justice to extend time to the applicant to seek judicial review of the Tribunal’s decision dated 16 April 2015.

9. Further, the filing of an application seeking judicial review of that decision in the context of the procedural history referred to above is an abuse of the Court’s processes and would likely bring the processes of the Court into disrepute. For those reasons, the application filed on 4 December 2018 should be dismissed pursuant to r.13.10(a) and r.13.10(c) of the Rules with costs.

10. Further, in circumstances where the Court has found that it was an abuse of the Court’s processes for the applicant to file the application on 4 December 2018 seeking an extension of time to seek judicial review of the decision of the Tribunal dated 16 April 2015, the applicant should require leave to file any further document in this Court in relation to this matter.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 21 March 2019