BCZ16 v Minister for Immigration

[2017] FCCA 2617

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCZ16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2617

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – application for an extension of time – criticism of applicant’s lawyer in proceedings before the Tribunal – criticism unsubstantiated – credibility findings – application dismissed.

Applicant: BCZ16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 990 of 2016

Judgment of: Judge Riley

Hearing date: 7 September 2017

Date of last submission: 7 September 2017

Delivered at: Melbourne

Delivered on: 7 September 2017

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Oliver Young

Solicitors for the first respondent: Sparke Helmore Lawyers

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Spake Helmore Lawyers

ORDERS

1. The application filed on 12 May 2016 for an extension of time be refused.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 990 of 2016

BCZ16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for an extension of time in relation to a proposed application for review of a decision of the Administrative Appeals Tribunal.  The applicant is a citizen of Sri Lanka.  He applied for a protection visa on 26 October 2012. 

2. The applicant claimed that:

   a)he was a Tamil Hindu from the Nuwera Eliya district;

   b)he was an aspiring news reporter who had previously worked for a local government minister;

   c)he was a freelance writer for local newspapers;

   d)in 2011, he was threatened by gunmen who were in a white van after he had written an article criticising the government;

   e)in April 2012, he was told by his wife that men with guns had come looking for him; and

   f)this happened after his agent told the local minister about articles that the applicant had written criticising the government. 

3. A delegate of the Minister for Immigration and Border Protection refused to grant the applicant a protection visa. 

4. The applicant then applied for review by the Tribunal.  The applicant was assisted before the Tribunal by a legal representative who provided written submissions to the Tribunal both prior to and after the hearing.  The applicant and his legal representative attended the Tribunal hearing.  The applicant was assisted at the Tribunal hearing by an interpreter. 

5. The Tribunal affirmed the delegate’s decision on 24 March 2016.  The Tribunal found that the applicant’s evidence about his key claims to have written articles and the subsequent consequences to be confused and implausible.  The Tribunal found other aspects of the applicant’s evidence to be vague and lacking in detail.  The Tribunal concluded that the applicant had fabricated many aspects of his claims.  The Tribunal considered that the applicant’s evidence overall was not credible. 

6. More particularly, the Tribunal accepted that the applicant worked for a Minister.  However, the Tribunal did not accept that the applicant worked with the media in his employment with the Minister and did not accept that the applicant was an aspiring news reporter.  The Tribunal said that the applicant’s evidence in relation to him being an aspiring news reporter had internal inconsistencies, and was vague and implausible.

7. The Tribunal also noted at paragraph 75 of its reasons for decision that the applicant had never engaged in any media studies, received accreditation or previously worked as a journalist.  On the contrary, the Tribunal found that the applicant had previously worked at a “prawn/fish shop” and as a sales representative.  The Tribunal considered the various articles the applicant claimed to have written but found aspects of his evidence to be implausible and lacking in credibility.  The Tribunal set out in its reasons for decision in great detail why it considered the applicant’s claims to lack credibility.

8. The Tribunal also considered a claim made by the applicant that he was a well-known poet and writer.  The Tribunal accepted that the applicant may have written some poems, but did not accept that they had ever been published.  The Tribunal did not accept that the applicant was known either in his local area or throughout Sri Lanka as a poet or writer. 

9. In relation to the applicant being a Tamil and allegedly being perceived to support the Liberation Tigers of Tamil Eelam, the Tribunal considered a good deal of country information.  The Tribunal accepted that Tamils face a level of discrimination in Sri Lanka.  However, the Tribunal did not accept that the problems rose to the level of serious or significant harm.  Moreover, the Tribunal considered that the applicant could avail himself of state protection. 

10. In relation to the issue of the applicant being a failed asylum seeker and returnee from the West, the Tribunal considered that the country information showed that the applicant did not face a real risk of serious or significant harm for these reasons.

11. In relation to the risks faced by the applicant as a person who had illegally departed Sri Lanka, the Tribunal accepted that the applicant may be imprisoned for a short period on remand.  The Tribunal considered that if the applicant were convicted of an offence under the Immigrants and Emigrants Act 1949 (Sri Lanka), he would probably be required to pay a fine of no more than 200,000 rupees.  The Tribunal considered the risk of the applicant being imprisoned upon conviction to be remote.  The Tribunal did not consider the imposition of a fine of 200,000 rupees to be significant harm as defined in the Migration Act 1958 (“the Act”).  The Tribunal considered that, with family support, the applicant would be able to pay a fine of 200,000 rupees.

12. The Tribunal accepted that if the applicant were held in remand for a few days he would face prison conditions that did not meet international standards. The Tribunal did not consider that the applicant would face persecution in prison for any Convention reason. The Tribunal considered that the poor conditions in Sri Lankan prisons were due to a lack of resources rather than the result of an intention by the Sri Lankan government to inflict severe pain or suffering, or to cause extreme humiliation. Consequently, the Tribunal did not accept that the applicant faced a real risk of significant harm as defined in the Act if he were held in remand for a few days.

13. All in all, the Tribunal did not accept that the applicant faced a real risk of serious or significant harm. 

14. The extension of time application was filed 14 days late.  The applicant filed an affidavit on 12 May 2016 explaining the circumstances leading to the delay.  The applicant said, in his affidavit, that:

    a)he received a letter from the Tribunal on 23 April 2016, which contained an account for a post decision fee;

    b)he concluded that his application had been rejected;

    c)he did not open the letter until 5:30pm on 23 April 2016, which was the Friday before the ANZAC Day long weekend (23 April 2016 was not the Friday of the ANZAC Day long weekend but the Saturday);

    d)he contacted his lawyers on Tuesday 27 April 2016 at 9am;

    e)he attended his lawyers at 10am;

    f)his solicitor told him that his case had been rejected, and advised him to see Victoria Legal Aid (“VLA”);

    g)he attended VLA at 11:30am on 27 April 2016, and provided them with his documents;

    h)the receptionist told him that someone would call him within a week;

    i)he did not hear anything;

    j)on Friday 6 May 2016, he rang VLA;

    k)he was told somebody would contact him;

    l)he attended VLA on Monday 9 May 2016;

    m)someone interviewed him;

    n)he was told VLA would be in touch;

    o)on 6 May 2016, a friend advised him to contact the Asylum Seeker Resource Centre (“ASRC”);

    p)he attended the ASRC on 9 May 2016; and

    q)he made an appointment to attend its Wednesday night legal clinic on 11 May 2016. 

15. The applicant explained to the court orally that the ASRC had assisted him to file his application.  He also said that his lawyer had not told him that his application to the Tribunal had been rejected until he contacted them himself after receiving the account from the Tribunal for $1,700. 

16. The applicant submitted that he had done everything he could to bring an application to the court as soon as possible after he learned of the Tribunal’s decision.  The Tribunal’s decision was made on 24 March 2016.  The applicant implied that the fault lay with his solicitors. 

17. The Minister did not suggest that there would be any particular prejudice to him in the event that an extension of time was granted. 

18. In relation to the question of whether there is an arguable case that the Tribunal made a jurisdictional error, the applicant told the court that the lawyers who helped him at the Tribunal did not understand his case.  The applicant said that:

    a)he did not know how they came to be his lawyers;

    b)his lawyers did not represent him well;

    c)his lawyers did not find out the details of his case;

    d)the matter was with his lawyers for about one year, and he thought they would call him;

    e)his lawyers did not contact him until one day before the hearing;

    f)his lawyers just told him he would have to attend the hearing the next day and told him how to conduct himself before the Tribunal;

    g)he was not able to prove to the Tribunal that he had been a reporter for a newspaper;

    h)if his lawyers had conducted themselves properly, they would have presented his case to the Tribunal in a more persuasive way;

    i)he had only recently learned that he could complain about his lawyers; and

    j)the Tribunal should have questioned him more about his work as a reporter. 

19. The grounds of review in the substantive application are pro forma grounds, namely, that:

    1.The decision of the Tribunal:

    (a)is affected by an error of law; and

    (b)denied the applicant procedural fairness.

    2.I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

    No particulars were given.

20. In my view, accepting the applicant’s evidence in his affidavit, he does have a reasonable explanation for his delay in filing the application in this court.  It seems that the applicant acted quite promptly once he learned of the Tribunal’s decision. 

21. However, it does not seem to me that there is a reasonably arguable case to the effect that there was a jurisdictional error made by the Tribunal.  It is well established that the Tribunal does not have to question an applicant to draw out her or his case.  It is for the applicant to put forward such material as she or he wishes. 

22. The applicant’s complaints about his lawyer do not take account of the fact that two written submissions were filed with the Tribunal on the applicant’s behalf by those lawyers.  The first was about 40 pages long: CB169-CB212.  The second was about 10 pages long and had attached translations of the applicant’s writing: CB238-CB254.  Lawyers at Tribunal hearings have a limited role because the essence of Tribunal hearings is questioning by the Tribunal of the applicant directly.  There is relatively little opportunity for lawyers to speak at Tribunal hearings. 

23. The claim that the applicant’s lawyer was assigned to him rather than engaged by him surprised me when it was made.  However, my associate googled the law firm in question during the hearing.  It appears that the firm was engaged by the Commonwealth to assist migration applicants.  In that sense, it may well be true that the lawyer was assigned to the applicant. 

24. I asked the applicant to explain what the lawyer did that was wrong and what difference the lawyer’s conduct might have made to the Tribunal’s management of the matter.  The applicant reiterated the complaints previously mentioned.  There is nothing in what the applicant said that would amount to a fraud on the Tribunal.  Indeed, from what the applicant has said and from an examination of the material in the court book, it does not even appear that there was negligence on the part of the lawyers. 

25. It appears that the Tribunal interviewed the applicant in a reasonable way with the applicant’s lawyer in attendance.  It is difficult to see any fair basis upon which the lawyers could be criticised for their conduct of the matter.  I am unable to discern any way in which the Tribunal denied the applicant procedural fairness, made an error of law, failed to take into account relevant considerations, took into account irrelevant considerations, or otherwise made a jurisdictional error. 

26. Although I consider that there is a reasonable explanation for the delay in filing the application, I do not consider there is sufficient merit in the substantive application for an extension of time to be granted.  As such the application for an extension of time will be dismissed. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 27 October 2017