AZU19 v Minister for Home Affairs
[2019] FCCA 3465
•2 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZU19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3465 |
| Catchwords: PRACTICE & PROCEDURE – Application for an extension of time within which to make a competent application to the Court – whether there are reasonable prospects of success – no reasonable prospects of success – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5J, 5LA, 36, 477, 473CA, 473DD, 476, 494B, 494C, pt.7AA |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442; (2013) 139 ALD 252 |
| Applicant: | AZU19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 576 of 2019 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 3 May 2019, 23 July 2019, 23 August 2019 and 16 October 2019 |
| Date of Last Submission: | 5 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 2 December 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Applicant: | Ms U. Okereke-Fisher (since 12 September 2019) by direct access |
| Counsel for the Respondents: | Mr G. Johnson |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application to extend time made pursuant to s.477(2) of the Migration Act 1958 (Cth) on 11 March 2019 is refused.
The applicant pay the first respondent’s costs set in the amount of $10,950.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 576 of 2019
| AZU19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 11 March 2019 pursuant to s.477(2) of the Migration Act 1958 (Cth) (“Act”) seeking an extension of time within which to make a competent substantive application pursuant to s.476 of the Act. That proposed application seeks judicial review of the decision of the Immigration Assessment Authority (“the IAA”) made on 16 January 2019 which affirmed the decision of the Minister’s delegate not to grant the applicant a Safe Haven Enterprise Visa (SHEV) (in essence a type of protection visa) (“the visa”).
The Evidence
The evidence before the Court is as follows:
(1)A bundle of relevant documents filed and tendered by the Minister (the Court Book – “CB” – “RE1”).
(2)The applicant’s affidavits of 9 March 2019 (annexing a bundle of relevant documents already before the Court), and of 29 April 2019.
(3)The affidavit of Mr Sivarama Krishnan Valliappan, solicitor, affirmed on 1 May 2019 and his affidavit of 30 August 2019.
Background
The applicant is a citizen of Sri Lanka. He arrived in Australia on 1 December 2012. He applied for the visa on 16 May 2017 (CB 53–CB 89). He is of Tamil ethnicity and of Hindu religion. He claimed to fear being threatened, kidnapped or killed by persons who had previously targeted him if he were to return to Sri Lanka.
The applicant claimed that his father had been targeted in the past because he was a Tamil from an area that had previously been a Liberation Tigers of Tamil Eelam (“LTTE”) stronghold. He claimed that his father had been abducted in 2007, and also later in 2012.
He also claimed that, since that time, men dressed in civilian clothing frequently came to his house, usually during the middle of the night, looking for his father. On one such occasion he was abducted, and threatened that he would be beaten, and shot, if he did not give them information about his father. He was returned to his house some hours later. He further claimed that the Sri Lankan authorities had visited his home since he departed Sri Lanka for Australia.
The Minister’s delegate refused the grant of the visa on 7 September 2018 (CB 207–CB 209) (and see CB 212–CB 227 for the delegate’s decision record). The applicant’s matter was referred to the IAA on 12 September 2018 (CB 228–CB 229).
The Immigration Assessment Authority
The IAA affirmed the delegate’s decision on 16 January 2019 (CB 238 –CB 253).
The IAA accepted that the applicant’s father had been kidnapped in 2007, and that he was missing for a few days. While there were some concerns with the applicant’s evidence, the IAA found his claim in this regard to be convincing ([8] at CB 240 and [9] CB 240–CB 241).
However, the IAA found his evidence about his father being kidnapped a second time, and to be still missing, as being not convincing ([8]–[11] at CB 240–CB 241).
The IAA explained this finding. In particular it noted that the applicant claimed at the interview with the delegate to have documentary evidence about his father being taken into custody. He said that this was “…in a letter”, and that he would send it to the delegate. The applicant had also told the delegate that he had copies of missing persons reports filed in relation to his father ([9]–[10] at CB 240–CB 241, and CB 215.5).
By the time of the delegate’s decision he had not sent any such documents to the delegate. There were no missing persons reports put before the IAA ([10] at CB 241).
The IAA also noted inconsistencies in the applicant’s various accounts of his claims over time in relation to his father’s circumstances ([10]–[11] at CB 241, and see also CB 215).
The IAA also did not accept the applicant’s claim that in 2009 a bomb exploded at a bus stop near the applicant’s house, that the army conducted “round-ups” in his neighbourhood, and that late at night armed men carrying guns and with bandannas covering their faces came to his family’s house.
The IAA explained that it did not accept these claims because the applicant had given inconsistent evidence about where he and his family were living in 2009, and subsequently. Further, it did not accept he was living in Trincomalee (the location of the family’s home) in 2009 ([12] at CB 241).
It found his evidence about what he said had variously occurred to him, not to be convincing. The IAA gave reasons for this ([13]–[16] at CB 242–CB 243).
The IAA also did not accept that the applicant had been targeted by unknown men whom he said came to his house looking for his father ([17] at CB 243).
It also noted that the applicant had told the delegate that he had photographs of his father following one of the claimed violent assaults on him. However, no such photographs were put before the IAA. Nor, did it have a letter that the applicant had told the delegate he would send concerning his father’s disappearance ([17] at CB 243).
The IAA accepted that the Sri Lankan authorities had come to his family home after his departure for Australia in October 2012. But found that this was in connection to his illegal departure from Sri Lanka ([18] at CB 243, and [22] at CB 244), and not to inquire about his father.
The IAA found that the applicant would not be targeted for harm by the Sri Lankan authorities, or others, because of his Tamil ethnicity, or for any perceived LTTE affiliation, or because of his father, or for any other reason. This was based on its various findings, and country information to which it had regard.
Before The Court
As set out above, the application pursuant to s.477(2) of the Act was made on 11 March 2019. At that time the applicant was held in immigration detention at the Villawood Immigration Detention Centre.
He first appeared before the Court on 3 April 2019. On that day the application pursuant to s.477(2) of the Act, was set down for hearing on 3 May 2019. Various other orders were made to facilitate that hearing. As the applicant was in detention the date for the hearing of the application to extend time was expedited.
On 29 April 2019, the applicant filed an affidavit made on that date. In the affidavit the applicant reproduced some of his factual claims as they were presented to the IAA, and expressed disagreement with the IAA’s findings (at [1]-[9] of the affidavit).
At [10] of the affidavit the applicant stated:
“I need to some more time to get lawyer and more ground to add on this affidavit. Can you please give me time until July 2019.”
At the hearing of the application to extend time on 3 May 2019, the applicant appeared in person. He was assisted by an interpreter in the Tamil language. The Minister was represented by counsel.
As he foreshadowed in his affidavit of 29 April 2019 (at [10]) the applicant sought an adjournment of the hearing for the extension of time. His submissions in support of this were that he wanted more time to “get lawyer”. The applicant indicated he wanted an adjournment until sometime in July 2019.
The applicant named a number of organisations to whom he said he had spoken (Legal Aid, RACS and the Refugee Law Project). He submitted that he was told they were all busy, no lawyer was available to assist him at this time, and that he should seek more time from the Court.
I ultimately adjourned the hearing of the extension of time for one week to enable the applicant to obtain some clear indication from any of these organisations (or indeed any other organisation) that they were willing, or able, to assist the applicant, and to notify the Minister, and the Court to that effect.
Nothing was filed by the applicant. However, and subsequently, the hearing of the application for the extension of time was further adjourned until 23 July 2019. That is to the time that the applicant had originally sought.
At the resumed hearing of the application to extend time on 23 July 2019 the applicant appeared in person. He was assisted by an interpreter in the Tamil language. The Minister was again represented by counsel.
The resumption of the hearing of the application to extend time was about two and a half months after the first occasion when the applicant made his request for an adjournment on 3 May 2019 (after indicating on 29 April 2019 that he would do so). This was the period the applicant had sought. However, the applicant sought a yet further adjournment.
He presented a business card from a solicitor, Prithvi Chand from CI Lawyers, to whom he said he had spoken some two to three weeks earlier and who had indicated he would assist the applicant.
Mr Chand was not present in Court. I adjourned for a short period to enable inquiries to be made of him.
Although not put before the Court in any evidentiary context, I ultimately understood the following to have come from Mr Chand.
Mr Chand wanted to assist the applicant. That assistance was that he would arrange for another lawyer to assist the applicant in the presentation of his case.
However, this was conditional on the applicant being in a position, or desirous, to pay what was estimated to be the legal fee of about $4000 to $5000.
The applicant submitted that if a further adjournment was granted he was willing, and in a position, to take steps to pay that amount of money to obtain legal assistance and representation.
The Minister opposed the grant of a further adjournment on the basis that there was still uncertainty as to whether any legal representation would be arranged, or indeed if the applicant, who was in immigration detention, would be able to pay the required fees.
For the following reasons I granted a yet further adjournment.
First, when this case initially came before me, I was concerned that some expedition should be given to the hearing of the application to extend time, given that the applicant was in immigration detention. That is, that the applicant was deprived of his liberty. However, the applicant had clearly, both by his words and his conduct, expressed a position that, notwithstanding the deprivation of his liberty, his greater concern was to obtain the services of a lawyer to assist him in his case.
Second, what I understood from Mr Chand was that there was a possibility of assistance being granted to the applicant through him. That amongst other things, was conditional upon the applicant being in a position to pay what is estimated to be the relevant fee. What I understood from the applicant was that if the further adjournment were to be granted, then he would be in a position to take steps to pay that amount of money to obtain legal representation.
Third, the applicant had already had about two and a half months to make his arrangements to obtain legal representation since the Court first granted him an adjournment on 3 May 2019. This does not take into account that the application to extend time was made to the Court on 11 March 2019 and the applicant’s failure to satisfactorily explain what steps he had taken to obtain legal representation between that date and 3 May 2019.
There was nothing before the Court in any evidentiary context to explain why the applicant was unable to arrange this representation within that time. Noting also that contrary to the applicant’s claim that he had contacted Mr Chand two to three weeks ago, Mr Chand’s report was that the approach had been made, in context, a few days prior to the hearing.
Fourth, however the applicant had pointed to the difficulties in making arrangements to obtain legal advice while he was in immigration detention. I noted that that had not been put before the Court in any evidentiary context, nor had the applicant sought to explain what else he did in the three months that had been most recently made available to him.
I considered Mr Chand’s reported statement that his capacity to arrange assistance for the applicant was not based on any assessment made by him of the prospects of some legal argument being able to be raised in support of the applicant’s case. Nonetheless, on balance, I was of the view that the adjournment should be granted in the circumstances where the applicant, who had told the Court that he has, or is able to arrange for, the adequate funds, at least be given the opportunity to have a legal practitioner look at his case, and to give him some proper legal advice as to whether some reasonable legal argument can be raised in support of his proposed substantive application.
Mr Chand said he wanted six weeks to make arrangements for the applicant. However, I set the matter down for directions on 14 August 2019 (a period of about three weeks) which was a reasonable period for the applicant, and Mr Chand to refer the matter to some other lawyer, and if necessary engage counsel. I was of the view, that by that time whatever lawyers the applicant was able to secure would be able to give the Court some indication of when they would be able to proceed.
I made clear to the applicant that on 14 August 2019 one of two things would occur. One, if he had engaged lawyers, they would need to have formally gone on the record, and indicate to the Court how they wished to proceed. Two, if the applicant did not engage any lawyers by that time, then his application to extend time would be heard as soon as possible after that date. I made clear to the applicant that if at that time he were to seek a yet further adjournment he would need to provide evidence to the Court by way of affidavit so as to support any such application.
On 14 August 2019 the applicant again appeared in person. He was assisted by an interpreter in the Tamil language. The Minister was represented by a solicitor.
The applicant had not made any arrangement to obtain legal representation. Notwithstanding what I had told the applicant on the previous occasion he again asked for a yet further adjournment of three months without providing any satisfactory explanation as to why his failure to secure such representation in the past had some possibility of success in the future.
The applicant complained that if he had been granted the three months that he asked for in April 2019, or as he said in the “first” place, he would have been able to arrange legal representation.
That submission plainly ignored that, as set out above, the applicant had achieved a period of about three months since 29 April 2019 (that is until July 2019 – see his affidavit at [10], and [23] above). In any event, there was no evidence from the applicant as to what steps he had taken through Mr Chand to arrange such representation since 23 July 2019.
Ultimately, in the circumstances, I set down the hearing of the application of the extension of time to resume on 23 August 2019.
On that date the applicant again appeared in person. He was assisted by an interpreter in the Tamil language. The Minister was represented by his counsel.
What occurred at the hearing is relevantly reported below. For immediate purposes, as set out at [106]–[109], I gave the Minister the opportunity to provide further evidence and the applicant to make any submissions in reply by 6 September 2019.
As also set out below, the applicant again raised the issue of obtaining legal representation (see at [111]–[114]). I noted with the applicant that given the time provided for the additional evidence and his submissions, if lawyers emerged to represent him, he would have that opportunity up to 6 September 2019.
On the morning of 6 September 2019 an email was received by my associate from Ms Okereke–Fisher of counsel. She advised that she “may be retained to appear for the Applicant at the hearing”.
She also stated in the email that she “advised the Applicant’s community to file the Applicant’s submissions at the court registry.” In context, this appeared to refer to the submissions for which leave had been granted on the previous Court occasion. These submissions are considered below.
As a result of the email from Ms Okereke–Fisher, I set the matter down for yet further directions on 12 September 2019.
On that occasion Ms Okereke–Fisher appeared for the applicant. The Minister was also represented by counsel.
It was clear that Ms Okereke–Fisher had not been properly instructed as to the long procedural history in this matter. In particular, that the hearing of the application to extend time had concluded, but for the leave granted to the Minister to file evidence as to the actual dispatch of the notification of the delegate’s decision to the applicant, and the filing of any written submissions in response to that matter by the applicant.
It appeared, amongst other things, that Ms Okereke–Fisher thought that the hearing to extend time was yet to take place.
In particular Ms Okereke–Fisher submitted that she wanted the opportunity to amend the grounds of the proposed substantive application. She stated that she had received relevant documentation and was of the view that there were grounds which could reasonably be argued. She wanted the opportunity to do so.
I asked her to identify, or give some idea, of what these grounds may be. She responded that she had not come prepared to argue the proposed grounds. The Court’s question was put in the context that for the purposes of the application to extend time any such grounds at this stage did not need to be fully argued, but rather whether some reasonably arguable legal issue arose. Ms Okereke–Fisher submitted that while she had read the material and made notes, she had not brought those notes with her.
At that time this case had already had a long history before the Court. The hearing of the application to extend time had concluded after the granting of a number of adjournments of that hearing on application, or request, from the applicant. In effect Ms Okereke–Fisher was asking the Court to “reopen” the hearing at a very late stage of the proceedings.
As I sought to explain, the task for the Court in response to counsel’s request was to balance this lengthy history with what the interests of the administration of justice required, and whether the hearing should be reopened to enable an arguable legal issue to be heard.
In that light, all that was required was that Ms Okereke–Fisher identify in broad terms the ground or grounds that required consideration in this context. When pressed she ultimately said it involved a failure to consider a claim, and possibly s.473DD of the Act.
The Minister formally opposed the grant of leave sought by the applicant.
Given that Ms Okereke–Fisher had provided some broad identification of a proposed ground, and had arrived at this after (on what she told the Court) some consideration (given she said she had read the relevant material and made notes), I gave her the opportunity to file an amended proposed substantive application by 13 September 2019.
Such a document was filed on 16 September 2019. It proposed three grounds. None of the grounds referred to s.473DD of the Act.
In light of this the parties were advised that the Court would benefit from hearing from both parties as to whether the proposed amended substantive application had merit, and whether the hearing of the application to extend time should be reopened. The opportunity for oral submissions on this matter was set down for 16 October 2019.
On that date Ms Okereke–Fisher of counsel appeared for the applicant. Mr G Johnson of counsel appeared for the Minister.
The applicant’s counsel advised that she had drafted written submissions which had been sent (recently) to the Minister’s solicitors, but had not been filed with the Court. Following a relevant order from the Court they were subsequently filed on 21 October 2019 and have now been taken into account by the Court. The Minister was given the opportunity to file any written submissions in reply by 5 November 2019. The Minister filed written submissions in relation to ground two of the proposed amended application.
The matter proceeded on 16 October 2019 with oral submissions from both parties. These are also considered below.
The applicant did not abandon the grounds of the proposed substantive application when he sought leave to proceed with the amended grounds. Both sets of the proposed grounds are therefore considered below.
The Issue for the Court
The issue for consideration is whether the time for making the application pursuant to s.476 of the Act should be extended in the interests of the administration of justice. There are a large number of authorities which provide guidance as to how to approach the resolution of this question (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77, MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110, Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 and SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158; MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [18]–[23]).
While the elements for such consideration are non-exhaustive, in the current case the length of the delay, any satisfactory explanation and the merits of the two sets of grounds of the proposed substantive applications are relevant considerations.
The Delay and the Parties’ Submissions
In this regard, the delay is just under three weeks. The IAA’s decision was made on 16 January 2019. Section 477(1) requires any application to this Court for review of that decision to be made within 35 days of that date. That is the application should have been made on or before 20 February 2019. It was actually lodged on 11 March 2019.
The applicant’s application for the extension of time advances the following grounds:
(1)In 2018 I was did approached by an organisation called (REFUGEE LEGAL services in Collingwood VICTORIA).
(2)When my protection visa was refused on that time I was in prison. the department and IAA did not notifie that I was refused my protection visa.
[Errors in the Original.]
The first ground does not assist the applicant. While he was assisted by this organisation in making his application for the visa, the application made clear that all communications were to be sent to the applicant (CB 62).
The second reason advanced is that the applicant was in prison when the IAA made its decision. His evidence is that the notification was sent to his home address. That is to be accepted.
His affidavit of 29 April 2019 (at [3]) states that the IAA decision was sent to his home, at the Melbourne address, when he was in prison. The evidence of Mr Valliappan, with reference to relevant documentation from the New South Wales Corrective Services, is that the applicant was received into custody on 14 November 2018, and released on 4 March 2019. The IAA’s decision was made on 16 January 2019. The applicant was in prison at that time. Notification was sent to his home address. The applicant does not dispute that this was the address he had provided in connection with his application.
The applicant had until 20 February 2019 to make the application to the Court. As set out above it was not made until 11 March 2019. That is, some 19 days late. This is a moderate period of delay, which to a large extent is explained by the fact that the applicant was in prison.
Before the Court the applicant personally, and later through his counsel made a number of submissions in support of the application to extend time pursuant to s.477(2) of the Act. The applicant’s various submissions did not differentiate between the question of delay in making the application to the Court and what occurred before the delegate and the IAA. For example whether, or when, he received notification of the delegate’s decision. For the sake of convenience, I have addressed the applicant’s submissions in whole, as put by the applicant himself, immediately below.
One, it appeared that he submitted that he was in prison when he lodged his application for the visa. On the evidence that cannot be accepted. The application for the visa was made on 16 May 2017. The evidence of Mr Valliappan is that the applicant was in prison from 14 November 2018 to 4 March 2019. There is no evidence to support the proposition that he was in prison on 16 May 2017.
Two, he was in prison at the time the decision was made to refuse his visa. He was therefore not able to make submissions to the IAA.
The evidence reveals that the delegate’s decision was made on 7 September 2018, and referred to the IAA on 12 September 2018 (CB 228 and CB 229). Again on the evidence, the applicant was not in prison at that time.
Three, the applicant submitted that he did not receive notification of the delegate’s decision because he had moved to Sydney to stay with friends because his Centrelink payments had ceased. He submitted he only found out the reason for this cessation some months later. That is, the payments were stopped because the delegate had refused his application for the visa.
The difficulty for the applicant is that his argument here was premised on the proposition that because he did not actually receive notification of the delegate’s decision around the time it was made, that that somehow was relevant to the current consideration.
What is relevant is whether the Minister complied with the relevant statutory and regulatory obligations in dispatching the notice (see further below). In the meantime, I note that the applicant also conceded that it was his “mistake” that he did not notify the Minister’s department of his change of address when he left Melbourne for Sydney.
Four, the applicant complained that because he was not notified within the “normal time” frame (that is receiving notice of the delegate’s decision at the time of the decision) he was deprived of the opportunity to make submissions to the IAA.
As the Minister submitted the relevant procedural fairness obligations that apply to the applicant’s circumstances are contained in Part 7AA of the Act. There is nothing in that part to provide the applicant with a right to make submissions to the IAA, or for that matter to be invited to an interview.
Five, the applicant submitted that he was 16 years old when he arrived in Australia. He is now 23 years old. It would be “difficult” for him if he were to be returned to Sri Lanka because he has no qualifications, because he was not able to study in Australia, had no skills and had been living in “uncertainty”.
As I sought to explain to the applicant the Court has no power to grant him a protection visa to remain in Australia. The issue before the Court was whether time should be extended so that he could press the grounds of the proposed substantive application.
As set out above the issues in that context are the length of the delay, the reasons (if any) for it, and the merits of the proposed grounds of the proposed substantive application and the amended proposed substantive application (see further below).
While there may be an adverse impact on the applicant if time were not to be extended, this, of itself, is not sufficient to grant the extension of time. In the current case, such a possibility of an adverse impact is relevant to proceeding with the necessary caution in the current consideration.
Six, the applicant submitted that he was in prison when the IAA made its decision. While this was put in context of the applicant not being able to make submissions to the IAA, this submission is relevant to the matter of the delay in making the application to the Court.
As set out above, the application for the visa was made on 16 May 2017. This was refused on 7 September 2018. The delegate’s decision was referred to the IAA on 12 September 2018. On the evidence he was in prison between 14 November 2018 (that is some two months after the referral) until 4 March 2019. The IAA’s decision was made on 16 January 2019. The applicant was in prison at that time.
The applicant had until 20 February 2019 to make the application to the Court within the time set out in s.477(1) of the Act. He continued to be in prison at that time. He was not released until 4 March 2019.
The application was lodged with the Court on 11 March 2019. The applicant therefore, acted promptly following his release to make his application. There is therefore, a satisfactory explanation for the delay. As set out below the issue in the current case turns on whether the grounds of the proposed substantive application and the amended proposed substantive application have such merit as to argue for the extension of time.
Seven, as set out above the applicant (but not subsequently his counsel) complained that he did not receive the delegate’s decision, yet the decision was referred to the IAA for assessment.
As the Minister submitted the fact that the applicant may not have physically had a copy of the delegate’s decision at the time of referral, does not deprive the IAA of jurisdiction to conduct the assessment.
Section 473CA of the Act compels the Minister to refer a “fast track reviewable decision” (as in this case) to the IAA “as soon as reasonably practicable after the decision is made”.
On the evidence that is what the Minister did. The IAA assumed jurisdiction to conduct the assessment on 12 September 2018.
This of course is predicated on the proposition that the applicant was properly notified of the delegate’s decision in accordance with the statutory and regulatory requirements.
In the current case, the Minister submitted that the letter notifying the applicant of the delegate’s decision was dispatched on 7 September 2018, to the applicant’s last address for the receipt of such documents that he had provided to the Minister’s department.
Noting of course that s.494C (in the current case s.494C(4)) provides that actual receipt of the notice by the applicant is not necessary. So long as the Minister complies with all of the statutory and regulatory requirements, the applicant is taken to have received the notice of the delegate decision, in this case, seven working days from the date of the document.
Towards the conclusion of the hearing on 23 August 2019 I sought clarification from the Minister as to the evidence that he sought to rely on to make good the proposition that the Minister dispatched the notification by post, to the applicant at the address he provided.
The Minister sought to rely on the copy of the letter of notification reproduced at CB 207. This shows, on the face of the letter, the applicant’s name, a date, and an address which corresponds with the address the applicant provided to the Minister’s department for the purpose of receiving such correspondence. The applicant does not now dispute that he did not give any subsequent address to the Minister.
However, as I put to the Minister, what is set out at CB 207 merely shows, at best, that such a letter exists on the Minister’s file. It does not provide evidence of any dispatch by post, nor given the requirement in s.494B(4)(a), that it was dispatched within three working days of the date of the document.
In the circumstances, I granted leave to the Minister to provide, by way of affidavit, any such relevant evidence that may exist. Given that the applicant continued to be in immigration detention, I also required the Minister to file an affidavit of service of this material on the applicant.
I then gave the applicant until 6 September 2019 to file any written submissions in reply. I advised the parties that if there was a need for any further hearing in light of what the Minister did, or did not, provide, or because of any submissions by the applicant, then the parties would be so advised by the Court. If there was no such need I would proceed to consider the application to extend time on what was before the Court.
At that point of the hearing (after almost two hours had passed) the applicant appeared to submit that he wanted an extension of time to obtain the services of a lawyer.
If the applicant meant this as some argument to extend time pursuant to s.477(2) of the Act for this purpose alone, then there is no right of legal representation in matters of this type (Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702; Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50).
If this was meant as some attempt to obtain a yet further adjournment of the hearing then I refused to adjourn for that purpose, given as set out above, the applicant had had a reasonable opportunity to arrange legal assistance and had been unable to do so.
In any event, as I pointed out to the applicant he had, in reality, as a result of the issue raised immediately above, until 6 September 2019. If he were to obtain the services of any lawyer up to, and including, that date, then the order that I also made granting the parties liberty to apply for further directions on three days notice, would provide any such lawyer with the opportunity to intervene on his behalf.
The affidavit of Mr Valliappan of 30 August 2019 annexes related documents from the records of the Minister’s department. In particular a copy of the relevant page of the “post register” of the Minister’s department. This reveals that on 10 September 2018 correspondence addressed to the applicant with a particular registered post number, was dispatched from the Minister’s department to the last address that the applicant gave for the purpose of receiving correspondence.
The applicant’s written submissions, drafted by counsel (and filed on 16 September 2019) do not advance the applicant’s case in this regard. They repeat what the applicant told the Court at the hearing on 23August 2019.
The submissions refer to the dispatch of the delegate’s letter notifying the applicant of the delegate’s decision. They accept that the Minister sent the letter to the address last provided by the applicant for the purpose of receiving correspondence. The submissions appear not to understand the relevance of s.494C to the circumstances presented (see [105] above).
In the circumstances, I am satisfied that the letter of notification of the delegate’s decision was sent within three working days of the delegate’s decision, to the applicant at the last address he provided for the purpose of receiving correspondence. The Minister therefore, complied with all the relevant statutory and regulatory requirements.
The First Set of Grounds of the Proposed Substantive Application
The first set of grounds of the proposed substantive application are in the following terms:
“1. The decision relied on evidence that incomplete as I did not go through every step of the proper application process.
2. I believe that the decision-maker and the IAA relied on evidence that was not submitted properly and that I did not review or agree to.
3. In the documents I have received from the IAA the decision-makers failed to give proper weight to the danger I would face as as part of a family that had actually been persecuted.”
What weighs strongly against the grant of the extension of time is that the grounds of the proposed substantive application lack requisite merit such that time should be extended in the interests of the administration of justice.
Before dealing with the proposed grounds, I note that in his affidavit of 29 April 2019 the applicant complains that he was in prison when the IAA made its decision. He states that he was imprisoned and did not know how to give “all the evidence to [the] IAA”.
The applicant applied for the visa on 16 May 2017 (CB 53). He was represented by a registered migration agent for the limited purpose of making that application. He notified the Minister’s department that all communication should be sent to him (item 11 at CB 62). He provided an address in Victoria (CB 69).
The delegate acknowledged receipt of this application on 28 June 2017, by letter sent to the address provided by the applicant (CB 101). The applicant was put on notice of the opportunity to provide documents and information in support of his application (CB 102).
On 1 June 2018 the applicant was invited to attend an interview with the delegate (CB 179–CB 181). He was again advised of the opportunity to provide further information (CB 186.9). He attended the interview on 14 June 2018 (CB 214.5). As set out above, he was given the opportunity to email further documents to the delegate. He did not do so.
The delegate refused the application on 7 September 2018 (CB 207). The delegate’s decision was referred to the IAA on 12 September 2018 (CB 228–CB 229). The applicant was notified of the delegate’s decision and IAA referral by letter sent to his home address (the same address to which the interview invitation had been sent CB 179–CB 181).
The letter acknowledging the referral to the IAA gave the applicant information about how to make submissions to the IAA and how to lodge new information (see CB 230–CB 234 see also CB 228–CB 229).
On the evidence before the Court the applicant was not in prison on 12 September 2018. He was not taken into custody until 14 November 2018.
Further, there is nothing from the applicant now to explain why the evidence that he otherwise says that he has, and he wanted to give to the IAA, was not provided to the delegate when that opportunity was given to him, or to the IAA in the two months before he was taken into custody.
In any event, and of central importance in the current consideration as to the reason for not granting the extension of time, is the lack of requisite merit, that is, the absence of a legally arguable case, in the proposed grounds.
It is unclear as to what is meant by proposed ground 1. Nor was the applicant able to provide a satisfactory explanation of this ground to the Court. I note that on its face the application was said to have been prepared by the applicant.
The Minister suggests that the ground is, possibly, an attempt to take issue with the IAA’s reference to the documents which the applicant told the delegate he would provide, and which were not subsequently provided, to the delegate or the IAA.
No arguable case arises in this regard. It was reasonably open to the IAA to find that the applicant had the opportunity to provide the information to the delegate, and without explanation did not do so. Further, it was reasonably open to find that nothing of this nature was subsequently put before it.
Proposed ground 2 asserts that the delegate and the IAA relied on evidence “that was not submitted properly and that I did not review or agree to”.
Again this ground is difficult to understand. Before the Court the applicant did not satisfactorily explain what was meant by this ground.
To the extent that the applicant seeks to complain about the delegate’s decision, then this cannot assist the applicant in raising an argument supporting the extension of time. The delegate’s decision was a primary decision that was referred for review pursuant to Part 7AA of the Act. This Court has no jurisdiction in relation to such decisions s.476(2)(a) and s.476(4)(c).
The Minister submits that the applicant’s ground may be an attempt to complain about three “situation reports” from the Minister’s department concerning incidents involving the applicant and police in Australia to which the IAA referred.
If so, the IAA’s reference was to note that the reports were put before it but found that they: “…contain information not relevant to the applicant’s claims for protection, and I have disregarded the information in all three reports” ([5] at CB 239). There is nothing in the IAA’s decision record to indicate that the IAA did otherwise. No arguable error arises from this.
Proposed ground 3 asserts that the IAA “failed to give proper weight to the danger I would face as as part of a family that had actually been persecuted”.
The applicant’s submissions before the Court indicate that what the applicant sought to complain about was the IAA’s conclusion that he would not likely face harm on return to Sri Lanka, and therefore should not be granted a protection visa.
No arguable error arises here. Proposed ground 3 in its terms seeks to complain about the IAA’s conclusion that, in effect, the applicant did not satisfy the criteria for the grant of the visa, and possibly the findings of fact that informed that conclusion.
The IAA’s findings are set out above. All of the IAA’s findings which informed its decision were reasonably open to it on what was before it, and for which it gave intelligible and cogent reasons. No arguable error is indicated by proposed ground 3.
In all the grounds of the proposed substantive application lack merit such as to weigh in favour of the extension of time pursuant to s.477(2) of the Act.
The Second Set of Grounds of the Proposed Substantive Application
As set out above after the conclusion of the final hearing the applicant was able to obtain the assistance of counsel. Counsel sought to press a proposed amended substantive application.
The further proposed grounds as drafted by counsel, are in the following terms:
“Ground one: Jurisdictional Error – The Authority failed to consider certain integers of the Applicant’s claims, leading to a failure to exercise jurisdiction and jurisdictional error
PARTICULARS
· Applicant claimed that he feared (i) that he might be mistreated by the authorities in jail because he is a Tamil who left Sri Lanka illegally; and (ii) for his health and safety in the prisons because he knows that the conditions in Sri Lankan prisons are poor (the “Claims”) [Paragraph 8, CB95-96]
· Without considering the Claims or registering any finding on the Claims, the Authority concluded “I am not satisfied that the applicant will suffer the death penalty, arbitrary deprivation of life or torture as a consequence of his unlawful departure. [Paragraph 48, CB 249]
Ground Two: Jurisdictional Error – The Authority fell into legal error by misapplying the definition of “receiving country” as defined under s5 of the Act in that it did not determine whether the Applicant was a national of Sri Lanka “solely by reference” to the law of Sri Lanka.
Particulars
(i) Section 5 of the Act defines “receiving country” to mean:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality – a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
(ii) Section 36(6) and (7) of the Act states:
Determining nationality
(6) For the purposes of subsection (3), the question of whether a noncitizen is a national of a particular country must be determined solely by reference to the law of that country.
(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
(iii) The applicant claimed “I never had a passport. I do not have any other original identity documentation with me in Australia.
(iv) I
The Authority concluded “I accept that the applicant is a Sri Lankan Tamil of the Hindu faith from Trincomalee, eastern province based on his identity documents and that he spoke in the Tamil language ……. I am satisfied that Sri Lanka is the applicant’s receiving country. [Paragraph 7, CB240].
Ground Three: Jurisdictional Error – The Authority failed to consider an integer of the Applicant’s Claims under the complementary protection regime pursuant to s.36(2)(aa) of the Migration Act 1958 (Cth).
PARTICULARS
· Applicant claimed that he was stopped at checkpoints, asked for his identity card and checked for weapons or guns. The Authority accepted that the Applicant was stopped at checkpoints and had his identity checked, and checked to see if he was carrying any weapons. [Paragraph 19, CB 243] (“Checkpoint Claims”)
· The Authority failed to consider whether the Checkpoint Claims constitute Significant Harm in the form of degrading treatment or punishment, pursuant to s.36(2)(aa).”
[Underlining removed.]
The immediate issue therefore, is whether any of these grounds has requisite merit such as to warrant, or argue for, the application to extend time in the interests of the administration of justice.
Proposed ground one of the proposed amended application asserts a failure by the IAA to consider certain integers of the applicant’s claims to fear harm.
The applicant argues that he expressly claimed that on return to Sri Lanka he might be mistreated by the Sri Lankan authorities during the period he would be kept in “jail”. This is said to be because he was a Tamil who left Sri Lanka illegally and that his health and safety would be affected because conditions in Sri Lankan prisons are poor.
To make good these assertions the applicant’s counsel referred to the applicant’s statement in his statutory declaration that accompanied his application for the visa. At [8] the applicant stated:
“8. I cannot return to Sri Lanka. I will live in fear for my life if I am forced to return. I fear I might be killed or kidnapped and threatened again by the same men or their group because they suspect both my father and I are affiliated with the LTTE. I am aware that is it an offence to leave Sri Lanka unlawfully. I know that I will be detained for this upon arrival and that I will need to request bail or I will be detained for days, if not weeks, months or years. I fear I might be mistreated by the authorities in jail because I am a Tamil who left Sri Lanka illegally. I also fear for my health and safety in the prisons because I know that the conditions in Sri Lankan prisons are poor.”
Counsel emphasised that what the applicant expressly claimed was that he would be mistreated because he was a Tamil who left Sri Lanka illegally. Further, that he feared for his health and safety because prison conditions in Sri Lanka are poor.
Counsel for the applicant submitted that the IAA did not “register” or consider those claims or make findings about them. In making this submission counsel referred to [18] of the IAA’s decision record to submit that the IAA accepted that the applicant had left Sri Lanka illegally.
At [18] the IAA stated:
“18. I am satisfied that in October 2012, the applicant departed Sri Lanka illegally by boat and arrived in Australia November 2012.”
Counsel submitted that the IAA considered country information and indicated what would likely be the consequences on return to Sri Lanka for the applicant because of his illegal departure. That is, that he would be questioned at the airport, possibly subject to a charge under the relevant emigration law of Sri Lanka, and possibly arrested by the Sri Lankan police. If arrested he would then be subject to court processes, police detention or would be held in prison. Counsel referred to [39]– [42] (CB 247–CB 248) of the IAA’s decision.
The argument was that in this consideration the IAA still did not address the applicant’s claim that on return he would be placed in custody and would be mistreated in custody because he is a Tamil who departed illegally. Further, that his health and safety would suffer because of poor prison conditions.
It must be said that the applicant’s proposed ground, and the submissions in explanation of it, is selective.
First, contrary to the applicant’s submission that the IAA did not “register” (I understood this to mean acknowledge or record) the claim, the IAA did so at [6] (CB 239–CB 240). In this paragraph the IAA “summarised” the applicant’s claims to fear harm. On the evidence before the Court this is a fair summary, and relevantly, comprehensive of the applicant’s claims.
In particular, and specifically relevant to the proposed ground, the IAA set out the following at the penultimate dot point of [6] (CB 240):
“· If returned to Sri Lanka he will be killed or kidnapped and threatened again by the same men or their group because they suspect both his father and he are affiliated with the LTTE. It is an offence to leave Sri Lanka unlawfully, and he will be detained for this upon arrival. He will be mistreated by the authorities in jail because he is a Tamil who left illegally. Prison conditions are poor and his health will suffer.”
This is a fair, and accurate summary of what the applicant set out at [8] of his statutory declaration that accompanied his application for the visa.
However, merely acknowledging a claim is not sufficient to say that the IAA considered the claim in the requisite sense. This requires some active engagement with, and evaluation of, the claim and the consideration of reasonable findings arising from that consideration in the relevant statutory context for the grant of the visa.
What is missing in the applicant’s argument now is that the IAA made no finding that the applicant would likely be held in prison for any period. Rather, in considering the claim, as made, the IAA found that the applicant might be detained briefly for no more than two days.
In short, the applicant claimed that he would suffer harm as a Tamil who left Sri Lanka illegally and that he would suffer harm in prison. The IAA reasoned, and found based on country information before it, that the applicant would at most be held in police custody for a short period. Even if charged (for illegal departure) the most likely outcome would be a “fine and not imprisonment”.
Country information before the IAA indicated that “…no mere passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally”. The IAA found that on the evidence before it there was nothing to say that the applicant was involved in people smuggling activities ([41] at CB 248).
Further, the IAA found that there was nothing in the evidence before it to indicate that the process, and statutory penalties, imposed as a result of the illegal departure would amount to serious ([42]), or significant ([48]), harm.
These findings were all reasonably open to the IAA on what was before it. The IAA gave logical and intelligible reasons for these findings.
For current purposes, the applicant’s assertion that two integers of his claims which he now says were not considered, were in fact considered by the IAA.
The applicant claimed that he feared serious or significant harm as a Tamil because he left Sri Lanka illegally. The IAA plainly considered and rejected this claim.
The applicant’s claim that he would suffer harm to his health and safety because of poor prison conditions, did not require specific focus on the claimed prison conditions by the IAA. This is because the IAA found, for reasons given, that the applicant would not likely be placed in prison.
The IAA did consider the situation relating to the applicant being held in a holding cell on arrival for a brief period as a result of having departed Sri Lanka illegally. In context, the applicant did not claim to fear harm for this reason. He claimed he would suffer harm in prison and sought to link this to the definition of “significant harm”.
At [48] (CB 249) the IAA found that the relevant conditions, and any penalties imposed, would not amount to significant harm. This was reasonably open to the IAA on the evidence before it.
In all the IAA understood the applicant’s claims in this regard. It considered these claims in the requisite sense. Ground one of the proposed amended application lacks requisite merit.
Proposed ground two of the proposed amended application asserts that the IAA fell into error by misapplying the statutory definition of “receiving country”. In short, the argument is that the IAA did not determine the applicant’s nationality with reference to the law of Sri Lanka as is required by s.5 of the Act. Rather, it proceeded on the basis that he was a Sri Lankan national in circumstances where he departed without a passport, and had never held such a passport.
The applicant’s argument appears to be that the IAA determined the applicant’s nationality to be Sri Lankan with reference to certain identity documents and his fluency in Tamil. But did not determine this question with reference to the laws of Sri Lanka.
The applicant’s proposed ground as explained appears to confuse the two separate concepts of nationality and holding a passport. A person can still be a national of a country and regarded as such by the law of that country, without ever having applied for a passport or been granted a passport by that country.
In any event, the flaw in the applicant’s proposed ground, and his argument in support of it, is that he, himself, claimed to be a Sri Lankan national (see item 10 at CB 4, item 17 at CB 66). In his statutory declaration which accompanied his application for the visa the applicant declared at [1]:
“I am a 21 year old citizen of Sri Lanka” (CB 94).
There is nothing in the evidence to show that the applicant claimed other than to be a national of Sri Lanka. He did not claim the citizenship of any other country. Nor did he make any assertion that he was stateless.
The delegate found that the applicant was a citizen of Sri Lanka (CB 212.10). The applicant made no complaint, or contrary claim, to the IAA about this matter of his nationality or citizenship.
The concept of “receiving country”, as it appears in s.5 of the Act, is in the following terms:
“(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality--a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.”
When regard is had to the relevant references of “receiving country” in the Act (s.5J(1)(b), (1)(c), (2), (3), s.5LA(1) and s.36(2)(aa)) it is clear that “receiving country” refers to that country to which the applicant would be sent if he is refused a visa to remain in Australia.
As is also made clear “receiving country” is synonymous with the country of which a non-citizen (in context includes an applicant for a protection visa) is, for current purposes, a national. The Explanatory Memorandum which related to the amendment of the Act which included “receiving country” states: [Act 135 of 2014, sch.5, item 18 of s.5(1) (Migration and Maritime Powers Legislation Amendment (Resolving Asylum Legacy Caseload)) Act 2014]
“Item 18 Subsection 5(1) (definition of receiving country)
1286. This item repeals the current definition of receiving country under subsection 5(1) of Part 1 of the Migration Act and substitutes a new definition of receiving country.
1287. The current definition of receiving country under subsection 5(1) provides that receiving country in relation to a non-citizen, means:
· a country of which the non-citizen is a national; or
· if the non-citizen has no country of nationality – the country of which the non-citizen is an habitual resident;
to be determined solely by reference to the law of the relevant country.
1288. The new definition of receiving country in subsection 5(1) provides that receiving country in relation to a non-citizen, means:
· a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
· if the non-citizen has no country of nationality – a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
1289. The new definition of receiving country is intended to apply in the definition of well-founded fear of persecution provided by new section 5J inserted by item 7 of Part 2 of Schedule 5 to the Bill. This item is therefore necessary if Part 2 of Schedule 5 to the Bill commences before the Migration Amendment (Protection and Other Measures) Bill 2014 (Protection and Other Measures Bill).
1290. The purpose of this amendment is to ensure that the new definition of receiving country inserted by Part 1, Schedule 2 of the Protection and Other Measures Bill will apply to persons seeking protection as a refugee under the new statutory framework relating to refugees.”
[Emphasis Added at 1288.]
In short, the relevant statutory scheme requires the IAA to decide the country of nationality of an applicant as that is the “receiving country” against which the applicant’s claims to protection are to be assessed.
What is missing in the applicant’s counsel’s submissions now is that the IAA’s finding that the relevant “receiving country” was Sri Lanka, which was the country of claimed nationality, meant that the IAA accepted, and did not reject, the applicant’s own claim in this regard.
The importance to the consideration of this proposed ground, of the IAA’s acceptance, as opposed to the rejection of the applicant’s claim in this regard, is illustrated by the case on which the applicant now seeks to rely (FER17 v Minister for Immigration, Citizenship and Multicultural Affair [2019] FCAFC 106 (“FER17”).
FER17, was a matter before the Full Court, which involved an applicant where the IAA found that although that applicant was born in India, and claimed to be stateless, the IAA found that the “receiving country”, that is the country of nationality, was Sri Lanka, the country of the applicant’s parents’ birth. (See at [19], and the reference to [13] of the primary Judge’s reasons in that case).
In that case the IAA’s decision concerned an incorrect application of Sri Lankan citizenship laws in determining the applicant’s nationality. The applicant was born in India. He claimed to be stateless. The IAA found he was a Sri Lankan national. It was in that consideration that legal error was found at first instance, and on appeal.
The circumstances of this case are entirely different. The applicant expressly claimed to have been born in Sri Lanka and to be a citizen of that country. There was no dispute that for the purposes of the assessment by the IAA, and for that matter by the delegate, that the country of nationality, and the “receiving country”, was Sri Lanka. This was the country against which the applicant’s claims were assessed.
Contrary to counsel’s submissions now the applicant’s lack of a Sri Lankan passport was not put by him in support of any claim that he was not a Sri Lankan national. Rather, it was put to explain his lack of evidence to support his claim that he was a Sri Lankan national. In that regard he stated in his statutory declaration, that his mother was going to send his original birth certificate, which he would give to the Minister’s department to establish his Sri Lankan nationality ([7] at CB 95).
The delegate proceeded to assess the applicant’s claims as against Sri Lanka consistent with the applicant’s claim to Sri Lankan nationality. The applicant made no complaint about this to the IAA. It was in this context that the IAA assessed his claims as against Sri Lanka as the “receiving country”.
In BZV18v Minister for Home Affairs [2019] FCA 1406, the Federal Court distinguished the circumstances in that case from FER 17 on the basis that, relevantly, the third and fourth applicants in that case made no claim to be stateless. They asked that their claims be assessed against Sri Lanka as the receiving country (see at [37]).
Further, as to the first and second applicants in that case the Court found:
“45. Thirdly, it cannot be said that the IAA erred in not considering this issue as it was not raised by the appellants. To the contrary, the first and second appellants stated that they had held Sri Lankan citizenship in their visa application forms and, while they left blank the box in the visa application form which inquired as to their current citizenship, they did not indicate that anything had occurred which might have resulted in the loss of Sri Lankan citizenship. Furthermore, the claims made by the first and second appellants, in common with the claims made with respect to their children, were directed towards the delegate and the IAA assessing their claims against Sri Lanka as the receiving country.”
In all, in the circumstances of this case there is no material error in the IAA’s consideration and acceptance of the applicant’s claim to be a national of Sri Lanka, and that it was the country against which his claims to fear harm were to be considered.
The obvious flaw in the applicant’s proposed ground now, and the submissions in explanation of it, is that he did not before the delegate, or the IAA, assert to be other than a Sri Lankan national. Nor does he claim now not to be a Sri Lankan national, or to be anything else.
Without such an assertion the applicant is unable to claim that the IAA’s conclusion as to the relevant “receiving country” was wrong. In short there is no material error by the IAA (Hossain v Minister for Immigration and Border Protection [2018] HCA 34). In all proposed ground two lacks merit.
Proposed ground three of the proposed amended application asserts that the IAA failed to consider under the complementary protection criterion an integer of the applicant’s claims. This was said to be that the applicant claimed to have been stopped at checkpoints when he was in Sri Lanka, asked for his identity card and was checked to see if he was carrying weapons. (“the checkpoint claim”).
The applicant relies on what the IAA reported to have occurred before the delegate at ([19] at CB 243):
“19. The delegate asked the applicant if, besides his claims to have been taken two or three times, he experienced other problems in Sri Lanka, and the applicant described being stopped at checkpoints and being asked for his identity card and checked for weapons or guns or anything. The applicant did not say when this happened, however, considering country information about checkpoints in the east of the country, 3 I accept the applicant was stopped at checkpoints and had his identity checked, and checked to see if he was carrying any weapons.”
[Footnote omitted.]
The assertion is that in considering the criterion at s.36(2)(aa) of the Act the IAA was required to consider this claim, and that it failed to do so.
The Minister submitted that this was not a “properly articulated claim”. It was not set out in the applicant’s statutory declaration that accompanied his visa application and which contained his claims to fear harm. Rather, it was a response to a question by the delegate at the interview which lacked detail, and lacked “articulation” as to when the checkpoint stops occurred, or that the applicant feared that they would occur in the future.
On the evidence, the applicant’s response to the delegate was absent specificity and detail. However, the IAA accepted that “…the applicant was stopped at checkpoints and had his identity checked, and checked to see if he was carrying any weapons” ([19] at CB 243).
The relevant question then is what did the IAA do with this claim that it accepted.
The applicant’s proposed ground asserts that the IAA failed to consider this claim in context of the criterion for the grant of the visa at s.36(2)(aa) of the Act.
In submissions, the applicant’s ground was explained as follows. The IAA was required to consider whether this claim constituted significant harm in the form of degrading treatment or punishment as relevantly defined in s.5(1) of the Act. (See also s.36(2A) of the Act).
The IAA set out its analysis and findings in relation to the applicant’s claims in the context of complementary protection at [45]–[51] (CB 248 –CB 249). The IAA specifically set out the definition of “significant harm” as it arises in s.36(2A) (at [46] CB 248–CB 249).
There is no specific reference in this analysis to the checkpoint claim. However, the following is relevant.
One, the IAA is not required to report in its setting out of its consideration in relation to complementary protection findings of fact expressed earlier in the decision record. (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774).
Two, the relevant test pursuant to s.36(2)(aa) of the Act involves an element of reasonable foreseeability. That is, past events may assist in the assessment of the likely risk of future harm but they are not necessarily determinative of it. (Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22).
For current purposes that means that while the IAA accepted that the applicant’s assertions in relation to the checkpoint claim had occurred in the past, the issue is whether it considered the likelihood of harm arising from the checkpoint claim in the reasonably foreseeable future.
Three, contrary to the way in which the applicant’s counsel has now presented this proposed ground, and the arguments in support of it, the checkpoint claim was not made by the applicant in isolation of other circumstances in his claims.
It is to be remembered that the applicant’s claim to fear harm on return to Sri Lanka was based on his Tamil ethnicity and the suspicion (“they suspect”) by the Sri Lankan authorities that he, and his father, were “affiliated” with the LTTE ([1] at CB 94 and [8] at CB 95–CB 96 of his statutory declaration which accompanied his application for the visa).
The applicant pressed these claims before the delegate. That is that he would come to the adverse attention of the Sri Lankan authorities on return to Sri Lanka just as he had been of interest to the “men dressed in civilian clothing” who had abducted him in the past “because they suspect both he and his father are affiliated with the LTTE”. (See in particular the dot points at CB 214, and also CB 218.4, and CB 220.4 of the delegate’s decision).
That is, central to the applicant’s claim to fear harm in the future on return to Sri Lanka was his Tamil ethnicity and the perception that he and his father were affiliated with the LTTE.
Specifically in relation to the matter of checkpoints the delegate had found (at CB 218):
“Country information indicates a marked improvement in the economic and security situation for Tamils in Sri Lanka, including in former LTTE-controlled areas. DFAT advised in January 2017 on the greatly improved security situation in the north, the removal of most check points and the decrease in monitoring and harassment of Tamils since the election of President Sirisena in January 2015. DFAT also notes that some Tamil landowners have had their land returned by the military and the appointment of civilian government in the north and east.21”
[Footnote Omitted.]
The IAA accepted that the applicant was of Tamil ethnicity and came from the Eastern Province of Sri Lanka ([7] at CB 240).
It did not accept however that, with reference to the reasonably foreseeable future, and based on country information before it, that the applicant would likely come to harm because of his Tamil ethnicity alone. Nor would past membership of the LTTE likely give rise to harm on return ([32] at CB 246).
The exception to this was “…unless they [persons with past membership] have or are perceived to have had a significant role in it [the LTTE]; or if they are, or are perceived to be, active in post-conflict Tamil separatism and thus a threat to the state” ([32] at CB 246).
The IAA found that there was no evidence that the applicant had been or was active in that fashion ([32] at CB 246). Further, it found that neither he nor his father were LTTE members or involved with the LTTE. Nor was he of interest to the Sri Lankan authorities when he left Sri Lanka ([33] at CB 246).
The IAA found at [33] CB 246:
“…I find there is not a real chance the applicant will be targeted for any harm by Sri Lankan authorities, or others because he is Tamil male from the east, or for perceived LTTE affiliations, or because of his father, or for any other reason.”
These findings were based on the applicant’s own evidence and country information before the IAA. They were reasonably open to the IAA for the reasons it gave.
All of the applicant’s claims to past harm, the events that he claimed to have occurred in the past, were all said to emanate from his Tamil ethnicity, and the perception of his and his father’s links with the LTTE. When the applicant, as reported by the IAA (at [19]), told the delegate that he had been stopped at checkpoints in the past this was in the context of his being a Tamil from an area controlled, or formally controlled, by the LTTE, (as was found by the IAA the applicant did not provide a temporal focus for this).
Importantly, at [19] (CB 243) the IAA did not find that the applicant would be stopped at checkpoints in the reasonably foreseeable future if he were to return to Sri Lanka. Rather, it accepted that he had been stopped at checkpoints in the past.
In this light, it did not need to make any further finding in this regard because there is no evidence that the applicant raised the checkpoint matter of itself as a fear of future harm. Rather, it was a claim relating to past harm, and what was said to be the claimed interest of the Sri Lankan authorities in Tamils, and their concerns about LTTE activities.
Given how the applicant presented his claims, that is, to the delegate, and as they were referred to the IAA, which included the finding made by the delegate on those claims, the IAA’s finding at [33] (as reproduced at [214], and as that finding was informed by other relevant findings, this was sufficient and comprehensive of the applicant’s claims to fear harm from the Sri Lankan authorities (the IAA dealt separately with the claim to fear harm because of the illegal departure).
At [49] the IAA stated in relation to complementary protection:
“49. I have found there is not a real chance the applicant will face any harm from Sri Lankan authorities, or others because he is a Tamil male from the east, or because of his father, or for any other reason. I am similarly not satisfied that there is a real risk of significant harm on these bases.”
When the IAA’s decision is read holistically this finding was comprehensive of all of the applicant’s claims to future harm on return to Sri Lanka. In all proposed ground three of the proposed amended application lacks merit.
Conclusion
None of the grounds of the proposed substantive application, or the proposed amended substantive application have merit such as to support, or argue for, the extension of time. It is appropriate to refuse the application to extend time. I will make that order.
I certify that the preceding two hundred and twenty-two (222) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 2 December 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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