BCY16 v Minister for Immigration and Border Protection
[2018] FCA 738
•16 May 2018
FEDERAL COURT OF AUSTRALIA
BCY16 v Minister for Immigration and Border Protection [2018] FCA 738
Appeal from: Application for extension of time: BCY16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 2380 File number(s): VID 1275 of 2017 Judge(s): O'CALLAGHAN J Date of judgment: 16 May 2018 Catchwords: MIGRATION – application for an extension of time to appeal primary judge decision – leave granted – where alleged that primary judge erred by failing to take into consideration claim that applicant witnessed shooting – where merits of the claim insufficient to allow extension of time – where clear that the Tribunal considered in detail the relevant shooting – application refused Legislation: Federal Court Rules 2011 (Cth), r 36.05 Date of hearing: 16 May 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 16 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr N Rogers of the Australian Government Solicitor Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs
Table of Corrections 24 May 2018 In “Date of Judgment”, the number “17” has been replaced by the number “16” 24 May 2018 In “Date of Order”, the number “17” has been replaced by the number “16” 24 May 2018 In paragraph 1, the number “17” has been replaced by the number “16” 24 May 2018 In the certification clause, the number “17” has been replaced by the number “16” ORDERS
VID1275 of 2017 BETWEEN: BCY16
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
16 MAY 2018
THE COURT ORDERS THAT:
1.The application for an extension of time dated 23 November 2017 be refused.
2.The applicant pay the first respondent’s costs to be assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)O’CALLAGHAN J:
These reasons for judgment were made ex tempore at the hearing on 16 May 2018 and accompany the orders set out above.
The applicant seeks an extension of time pursuant to rule 36.05 of the Federal Court Rules 2011 (Cth) to appeal from a decision of the Federal Circuit Court of Australia given on 11 October 2017. The application was late filed by approximately three weeks. The first respondent (the Minister) contends that the application for an extension of time should be refused, firstly, because the applicant has not adequately explained the reasons for the delay but, primarily, because the substantive appeal has no merit to it.
The applicant is a citizen of Sri Lanka. He applied for a Protection (Class XA) visa (visa) in December 2012. The applicant claimed to fear harm because: (1) he had witnessed shootings by the Criminal Investigation Department (CID) in Sri Lanka; (2) because he was a Tamil from the Northern Province; and (3) because he left Sri Lanka illegally.
In December 2013 a delegate of the Minister refused to grant the visa. A hearing was held before the Administrative Appeals Tribunal (the Tribunal) in October 2015. In April 2016, the Tribunal affirmed the delegate’s decision to refuse the grant of the visa. The applicant then appealed to the Federal Circuit Court on the grounds that the Tribunal’s decision:
(1)was affected by an error of law; and
(2)denied the applicant procedural fairness.
Those grounds of appeal were not particularised in any respect. The primary judge, in a decision dated 11 October 2017, dismissed the application for judicial review of the Tribunal’s decision.
The applicant explains in an affidavit that the application for leave to appeal was not filed within time because:
… After receiving the decision of [the Federal Circuit Court judge], I did not know the procedures involved in applying for a review.
… I did not seek advice from [Victorian Legal Aid] as they did not assist me in the Federal Circuit Court after the lodgement of the application for review. I sought advice from the local community and that took time.
… The reason that this application is not filed within time is that there was a substantial delay in receiving advice and assistance from the community.
For the purposes of this application I am prepared to assume, without deciding, that the applicant’s explanation for the delay is a satisfactory explanation.
In his draft notice of appeal, the applicant seeks to contend as follows:
His Honour erred in failing to conclude, having noted the claims made by the applicant to the second respondent, the Tribunal, that the second respondent erred in failing to take into account relevant consideration, particularly the applicant’s claim that the local news reporter was shot [sic].
The following particulars of appeal are given:
(1)His Honour acknowledged the applicant made a claim to the second respondent that the reporter of the local news story of the said incident was shot;
(2)His Honour noted that the applicant did not have any further information;
(3)The second respondent failed to examine this issue in-depth despite this being valid reason for the applicant’s fear that he would also be killed as he was a witness to the second incident.
At the hearing this afternoon, at which the applicant appeared unrepresented, but with the assistance of an interpreter, I asked the applicant whether he wished to make any further submission as to the legal basis of his potential appeal. He said, in substance, that a further ground that he would seek to advance on appeal was that the Tribunal did not consider the fact that because he reported a security man with whom he had been detained on Christmas Island, and who had been returned to Sri Lanka, he faced a greater threat if he were returned to Sri Lanka because the security man was one of the people who had known that he, the applicant, had observed the shooting referred to in the grounds of appeal. The applicant also said that he would be under “a threat to his life” were he to return to Sri Lanka because the security man was living in his area near Jaffna, in the north of Sri Lanka.
This ground was not contended before the Federal Circuit Court judge. The applicant requires the leave of this court to raise new grounds by producing a sufficient explanation for not raising those grounds in the court below. In circumstances where the Minister contends, however, that the primary basis upon which the application for an extension of time should be refused goes to the merits of the potential grounds of appeal, I now proceed on the assumption, without addressing the point, that leave to raise the new grounds should be afforded to the applicant.
In my view, neither of these grounds of appeal enjoys any prospect of success, because it is readily apparent from the Tribunal’s reasons that the Tribunal considered in detail, and rejected, the relevant factual claims.
In respect of the ground of appeal contained in the draft notice of appeal, that claim was set out at paragraphs [46], [47] and [48] of the Tribunal’s reasons, as follows:
46. On the day of Ruben’s shooting (in April 2008), a popular reporter from Sakhti TV took a video. Sakhti TV is a Tamil broadcast channel. The applicant’s bakery was the only one open and he was visible. The event was video-taped and broadcast on Sakhti TV. The shooting itself was not videoed but the surrounding area was. He confirmed that he was referring to a news report of the killing. His wife called him and said everyone else had run away and asked why he was still in the shop. He had to deliver goods otherwise it would all go to waste. The broadcast was aired some hours after the incident.
47. He learnt that the report was shot but he does not know any further details. He was asked about the significance of this to his fears. He claimed that a person who broadcast this was shot so if he witnessed it, he could also face this fate. The tribunal questioned whether the reporter’s death was connected to the news broadcast of Ruben’s shooting given the applicant’s lack of details about the reporter’s death.
48. The applicant advised that he was not interviewed during the broadcast or asked any questions about this broadcast by Kumar or anyone. The tribunal noted that the broadcast did not seem to indicate that the applicant actually saw the incident and put to him that it did not seem to affect him given no one asked him about it.
The claim being the subject of the ground of appeal contained in the draft notice of appeal is dealt with at paragraph [94] of the Tribunal’s reasons as follows:
94. The tribunal also does not accept that the applicant was featured in a Sakhti news report in relation to the 2008 murder. The tribunal has concerns about the applicant’s delay in raising this claim and gives little weight to the claim that he viewed these details as peripheral, given that the applicant’s alleged witnessing of this murder is a key part of his claim. The tribunal further does not accept that the news reporter was shot given the applicant’s lack of details such as when or why this allegedly occurred.
As for the ground of appeal enunciated by the applicant in court this afternoon, the claims the subject of that ground are set out and considered in paragraphs [100] – [106] inclusive of the Tribunal’s reasons, as follows:
100. The applicant has provided details about the identity of a fellow unauthorised maritime arrival in detention who he claims is actually the CID officer Kumar including that individual’s boat ID. As noted above, the tribunal has not accepted the applicant’s claims about his dealings with a CID officer named Kumar. The tribunal also questions why a senior level CID officer, as the applicant has described Kumar to be, would come to Australia by boat together with mostly Tamil asylum seekers. The tribunal also has concerns regarding the applicant’s evidence that the person described by the applicant as ‘Kumar’ is known as ‘Emmanuel’. It gives little weight to the applicant’s claim that ‘Kumar’ is ‘Emmanuel’s nickname. The tribunal does not accept on the evidence before it that the person described as ‘Kumar’ by the applicant and ‘Emmanuel’ is the same person.
101. Nevertheless, the tribunal notes that the applicant has consistently referred to a person known as ‘Emmanuel’ being in detention with him and has specifically identified him by his boat number. Records before the tribunal confirm that the boat identification number provided by the applicant is that of a Sinhalese asylum seeker with the name ‘Emmanuel’. The tribunal is willing to accept that a person known as Emmanuel was known to the applicant in detention.
102. The tribunal is willing to accept that Emmanuel may have made threats to other detainees while in detention in Darwin, which were reported to Australian detention authorities by those detainees and the applicant himself. The applicant did not provide any information about what the nature of the dispute or threats Emmanuel made against other detainees were, apart from claiming that they would be sent back to Sri Lanka. The tribunal is willing to accept that such a statement may have been made however it does not accept on the evidence before it that this is related to the applicant’s chance or risk of harm.
103. The tribunal is willing to accept that the applicant was told by SERCO and/or immigration that Emmanuel was being monitored but finds this more likely to have been the result of the reported threats and does not accept on the evidence before it that the applicant informed authorities in Australia that Emmanuel was in fact a CID officer named Kumar.
104. The tribunal does not accept the applicant’s vague and undetailed assertion that Emmanuel made a ‘general statement’ to Tamil detainees. Furthermore, his evidence about threats made by Emmanuel to him is inconsistent. He claimed at hearing that Emmanuel did not threaten him because he knew the applicant would report it to Australian authorities and that he merely made ‘normal conversation’ whereas his written claims refer to being threatened by Emmanuel aka Kumar in the form of being accused as an LTTE member or having Emmanuel’s aka Kumar’s partner harm the applicant’s family. Given these inconsistencies and the tribunal’s finding that Kumar and Emmanuel are not the same person, the tribunal does not accept that the applicant was ever threatened by ‘Emmanuel’ in Australia.
105. Given its concerns and above findings, the tribunal does not accept that Emmanuel aka Kumar told his partner Ranjith or other contacts that the applicant is in Australia or that information has been provided to Australian authorities about them. As put to the applicant, the person described by the applicant as Emmanuel aka Kumar returned to Sri Lanka in 2013 and the applicant has not claimed that his family have been contacted or harmed by this individual. The tribunal finds the applicant’s claim that Emmanuel aka Kumar, Ranjith or others may have made inquiries with others about him to be speculative and without basis and gives little weight to the applicant’s evidence that action will only be taken once the applicant has returned to Sri Lanka.
106. On the basis of the evidence before it the tribunal finds the chance or risk that the applicant will face serious harm or significant harm by Emmanuel (aka Kumar) and/or any associates is remote and speculative.
In those circumstances, the orders of the court will be that the application for extension of time dated 23 November 2017 be refused and that the applicant pay the first respondent’s costs to be assessed or agreed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate:
Dated: 16 May 2018
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