BDC17 v Minister for Immigration and Border Protection
[2018] FCA 1899
•30 November 2018
FEDERAL COURT OF AUSTRALIA
BDC17 v Minister for Immigration and Border Protection [2018] FCA 1899
Appeal from: Application for extension of time: BDC17 v Minister for Immigration and Border Protection & Anor [2018] FCCA 1161 File number(s): VID 445 of 2018 Judge(s): BURLEY J Date of judgment: 30 November 2018 Catchwords: MIGRATION – Safe Haven Enterprise Visa application – out of time – application to set aside orders made when applicant failed to appear – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 24, 25
Federal Court Rules 2011 (Cth) rr 36.03, 36.05, 36.75
Migration Act 1958 (Cth) ss 7AA, 36(2), 47, 65, 414, 424, 473CC
Cases cited: BDC17 v Minister for Immigration and Border Protection & Anor [2018] FCCA 1161
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
Date of hearing: 21 November 2018
Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 32 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr C Tran Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 445 of 2018 BETWEEN: BDC17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
30 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the First Respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BURLEY J:
1. INTRODUCTION
This is an application for an extension of time within which to appeal from a decision of the Federal Circuit Court of Australia (FCCA).
The applicant is a national of Sri Lanka who arrived in Australia in September 2012 as an unaccompanied minor and lodged an application for a Safe Haven Enterprise visa (SHEV) (XE-790) on 24 May 2016. He claims, in broad terms, that he will be persecuted or the subject of discrimination by the authorities if he is forced to return to Sri Lanka as a result of his status as an orphan with no protector, as an orphan from a particular part of Sri Lanka, as a result of certain imputed political opinions, and as a person who departed Sri Lanka illegally and was forced to return.
The applicant’s visa application was first considered by a delegate of the Minister for Immigration and Border Protection who determined that it should be refused. He then applied to the Immigration Assessment Authority (IAA) for a review of the decision pursuant to Part 7AA of the Migration Act 1958 (Cth) (Act). On 24 February 2017 the IAA affirmed the delegate’s decision not to grant the application.
The applicant then applied to the FCCA for judicial review of the decision of the IAA and on 7 March 2018 that court dismissed his application; BDC17 v Minister for Immigration & Anor [2018] FCCA 1161.
The applicant then sought to appeal to this court. The Federal Court Rules 2011 (Cth) (FCR) provide in r 36.03 that an appellant must file a notice of appeal within 21 days from when the judgment appealed from is pronounced or the order was made. The applicant did not lodge an appeal within that time, and so he was obliged to file an application for leave to appeal pursuant to FCR r 36.05. This he did on 19 April 2018, which was 22 days after the prescribed time.
The application for an extension of time relies on the grounds set out in an accompanying affidavit provided by the applicant on the same day. This relevantly said:
I was very sick past few weeks. I do not hold a medicare card and no money to visit a doctor. I took herbal medicines. The sickness delayed my application to court.
Also accompanying the application to this court is a draft notice of appeal that identifies two grounds:
(1)The proceeding in the order which the application relates was pronounced involves a question of law.
(2)There is jurisdictional error in the order.
The application was listed for hearing on 21 August 2018. When it was called, the applicant made no appearance. The Minister was represented by Mr C Tran of counsel who had filed written submissions in advance. The Minister submitted that in the absence of the applicant the proceedings should be dismissed with costs, pursuant to the power conferred by s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and FCR r 36.75(1). I acceded to that submission and made orders dismissing the proceedings.
On 17 September 2018 the applicant filed an interlocutory application pursuant to FCR r 36.75(2) for orders setting aside the orders made on 21 August 2018, and seeking leave to appeal out of time from the decision of the FCCA. The applicant provided an affidavit in support stating that his failure to attend the hearing was due to his limited understanding of the court process and failing to understand that he had to be present or that the matter would proceed in his absence.
I listed the interlocutory application for hearing on 21 November 2018. The notice of listing advised the parties that on that date the question of the grant of leave together with the substance of the appeal should be the subject of submissions.
The applicant represented himself at the hearing of the application with the assistance of an interpreter. He filed no written submissions in advance. The Minister was again represented by Mr Tran of counsel, who filed written submissions in advance of the hearing cross-referencing his earlier submissions. The Minister contended that whilst he did not accept the applicant’s explanation for failing to attend the earlier hearing on 21 August 2018, nevertheless the application for an extension of time within which to appeal should be dismissed because the proposed appeal was of insufficient merit.
2. THE DECISION OF THE IAA
The IAA summarised the applicant’s claims as follows:
He fears persecution and/or substantial discrimination in the form of psychological harm, physical assault, arbitrary arrest and detention, imprisonment and possible death at the hands of the Sri Lankan authorities or political groups or other non-state actors on account of:
•his status as an orphan with no male protector;
•as a young orphan from the North West (sic) Province of Sri Lanka;
•his imputed political opinion in favour of the Sri Lankan Freedom Party (SLFP) on account of the political opinion of his adoptive parents;
•as a young person who departed Sri Lanka illegally to seek asylum, as a forced returnee with no documents and as a young male forced returnee; and
•as he has no male protector and cannot gain protection from his family, and is young and vulnerable, having limited education.
The decision of the IAA records that there were significant variations in the version of events given by the applicant concerning his circumstances and history in Sri Lanka. In particular, the IAA points to discrepancies between the interview he gave on arrival to Australia in January 2013, a letter from his representative in November 2013, the contents of his SHEV application completed on 24 May 2016, and the information provided at his SHEV interview.
The IAA summarised the discrepancies in its reasons as follows:
17.The evidence he provided in his lawyer’s letter of November 2013 and at the SHEV interview was almost entirely inconsistent with the information he provided at or around his Arrival re-interview in January 2013. In January 2013 he indicated he lived at the same address, his parents, throughout his time in Sri Lanka; he completed school up to Year 11; he had not been employed; his reason for leaving Sri Lanka was due to financial difficulties and his father being a fisherman; and that he wanted to return home to Sri Lanka, had spoken to his parents about it and was interested in financial assistance that would, apparently, allow his father to use a vehicle in his fishing business.
18.The evidence in his lawyer’s letter of November 2013, in his SHEV application and at the SHEV application was frequently inconsistent. He variously claimed that he left his parents’ place in 2005 or 2010; that he was at his Aunty’s from 2005 or 2010; that he lived on the beach for five years or so; and that he slept on the beach some nights while living with his Aunty. He’s claimed either that he worked as a fisherman from June 2010 to February 2011 or for a period of three to four years. He variously claimed that he went to school from 2001 to 2011 and completed his O-levels; that he went to school up to Year 11 but didn’t sit his O-levels; that his living and working on the beach meant that he eventually stopped going to school; and that his adoptive parents stopped him going to school. He claims at different times that he was harassed by a group of young men who supported the UNP and would harass him because his adoptive parents were in the SLFP; that the young men were from a different political party and would harass him for his support of the UNP; that the young men were also supporters of the UNP, like him, but may take action against him because of drugs or other reasons; and the young men made him do forced labour. He claimed variously that his adoptive parents mistreated him including his adoptive father sometimes beating him or that his adoptive parents abused him by making him do work, making him follow their commands and stopped him going to school and church, but didn’t claim he was beaten.
The IAA found that in light of these inconsistencies, the applicant could not be regarded to be a credible witness. It found that the information that he gave at his arrival interview was most likely to be the correct version of events. It said:
20.Based on how he presented on the recording of the Arrival re-interview, the contemporaneousness of the information he gave at the Arrival re-interview to his time living in Sri Lanka, the consistency between his information at that interview and the information he supplied to the DIBP removals officer as reported in the 18 January 2013 email, and the problems with his later evidence discussed above, I accept the applicant’s claims as set out in his Arrival re-interview. I accept that he lived with his parents in the same address throughout his time in Sri Lanka; he left Sri Lanka in August 2012 to travel to Australia and his father paid 5 lakhs for his trip; he came to Australia because of financial difficulties related to his father’s business as a fisherman; that he was not employed in Sri Lanka; that he went to school from 2001 to 2011 and completed Year 11; and at that time he was interested in returning to Sri Lanka, and his parents were happy for him to return to Sri Lanka, depending on what financial assistance he could obtain from the IOM or Australian Government.
The IAA rejected the applicant’s claims that he was adopted, that his parents abused or mistreated him, that he left his parent’s home to live at the beach and/or with his Aunt, that he worked as a fisherman before he left Sri Lanka, that he was harassed or was otherwise harmed by a gang of young men who were supporters of a political party or that his parents, that his parents are supporters of the SLFP, that he or his aunt are supporters of the United National Party (UNP), or that if he returned to Sri Lanka he would be without any family support.
The IAA found that if the applicant returns to Sri Lanka he will be considered by the authorities to be a failed asylum seeker who departed illegally. It also found that he left Sri Lanka because of financial difficulties connected with his father’s fishing business and that he is a Christian.
Under the heading “Cumulative circumstances”, the IAA’s reasons indicate that it accepted that the applicant may experience some societal discrimination, but not at a level that could be considered serious harm. It also accepted that he will face some non-discriminatory penalties because of his illegal departure from Sri Lanka. However, in considering his circumstances as a whole, the IAA was not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future, either because of his illegal departure, for having made a claim for asylum in Australia, as a result of his father’s financial difficulties, as a Christian, as a young Sinhalese male from his region, or any combination of these things.
As a consequence of these matters, the IAA concluded that the applicant does not have a well-founded fear of persecution and does not meet the requirements of s 36(2)(a) of the Act. Nor, having regard to the criterion for complementary protection under s 36(2)(aa) of the Act, was the IAA satisfied that as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka there is a real risk that the applicant will suffer significant harm.
3. THE DECISION OF THE FCCA
The applicant sought judicial review of the decision of the IAA on four different grounds. The primary judge summarised the grounds and the particulars relied upon as containing 13 separate claims, which are set out below:
1)The IAA failed to consider six different aspects of the applicant’s claims on the basis of:
i) Being a young person without adult protections;
ii) Being a failed asylum seeker;
iii) His unlawful departure from Sri Lanka;
iv) Beach gangs;
v) Data breach; and
vi) The complementary protection provisions.
2) The applicant was denied natural justice as a result of:
(i) Questioning that prevented him putting his case;
(ii)No account of his limited education, age and language being considered;
(iii) A failure to accept his account as credible;
(iv) Undue weight being given to [in]consistencies in his evidence.
3) That the IAA failed to comply with s.424(1) in failing to set out its concerns with respect to his evidence and s.424A(1) by failing to provide him with copies of the relevant material.
4) It is alleged that the IAA failed to review and consider the application for the purposes of ss.47, 65 and 414 of the Act.
The primary judge then addressed each of these grounds. In relation to ground 1, he noted that each of the aspects of the applicant’s claims that were identified in the particulars had been specifically addressed by the IAA, and noted the part of the reasoning by the IAA where it had done so. In relation to ground 2(i), the primary judge noted that there could have been no questioning or conduct by the IAA that prevented the applicant “putting his case” because there was no hearing before the IAA, and the applicant had never requested one. In relation to grounds 2(ii) – (iv), the primary judge noted that each of the matters about which complaint was made were considered by the IAA and that matters of credibility and weight were within the purview of the decision maker. In relation to ground 3, the primary judge noted that the sections of the Act relied upon do not apply to review by the IAA and are accordingly inapplicable. However, looking at the underlying substance of the argument raised, the primary judge considered that the applicant seemed to be complaining that the IAA failed to disclose its thought processes to him before making its decision. The primary judge found that there was no obligation for the IAA to do so. The primary judge noted that ground 4 appeared to be a generalised complaint about the outcome of the reasoning of the IAA. The primary judge saw no real relevance of ss 47 or 65 of the Act and noted that s 414 does not apply to the IAA, which carried out its role under s 473CC of the Act.
Having regard to the scattergun of complaints made by the applicant, the primary judge concluded that he was not satisfied that the applicant had established any ground for judicial review, and dismissed the application.
4. THE APPLICATION FOR AN EXTENSION OF TIME
The Court usually has regard to the following factors when considering whether to grant the extension of time that is sought: the extent of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed appeal. These factors are considered together and assist in arriving at a conclusion as to whether it is in the interests of justice for the extension of time to be granted. It is seldom in the interests of justice for an extension to be granted where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the court, and the impact on other litigants who are waiting to have their cases heard. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is “sufficiently arguable” or has “reasonable prospects of success”; see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (per Mortimer J).
In the present case the delay was some 22 days. The explanation provided by the applicant is that he was unwell and that he had no money to visit a doctor. For that reason, it is perhaps understandable that no doctor’s certificate was provided in corroboration of the applicant’s medical condition. The Minister does not challenge the evidence provided by the applicant in this respect. Nor does he contend that he would suffer prejudice as a result of the delay in filing the application. The focus of the Minister’s opposition to the application for leave is upon the lack of merit of the applicant’s proposed grounds of appeal. As noted earlier, the Minister adopts a similar position in relation to the interlocutory application filed pursuant to FCR 36.75(2).
During the hearing the applicant made a number of submissions in support of his application. First, he submitted that the Sri Lankan Criminal Investigation Department (CID) is now looking for him in the course of investigations as to how he came to Australia by boat. One of his companions from Sri Lanka has been arrested and physically harassed by the CID, and has been asked for the applicant’s contact details. Secondly, he has police reports and reports from his local village, including information from his aunt who lives there, which show that it is unsafe for the applicant to return home. The applicant submitted that this was largely the same material that was before the IAA, but nevertheless the Court should examine it because the IAA was incorrect to disbelieve the applicant when he told it that he was in danger upon his return. Thirdly, the Court should receive additional evidence, including evidence from the applicant’s aunt, as to the current position. The applicant submitted that he received this additional information after the IAA decision, and that the additional evidence would further explain why it is unsafe for him to return to Sri Lanka. Fourthly, the applicant has received two phone calls in Australia from people whom he believes to be from the CID wanting to find out what statements he has provided.
In relation to the current application to set aside the orders made on 21 August 2018, the applicant submitted that he could not attend court because he was ill. He could not pay for medical treatment and could not get any medical certification to explain his illness. I note that this explanation, given from the bar table, is inconsistent with the applicant’s own affidavit, which states that he was unable to attend court because he did not understand the court processes or that the case would proceed in his absence.
I commence my consideration of this application with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the applicant satisfies the criteria for the grant of the SHEV or to grant the applicant a visa. As such, neither Court has the capacity to consider the factual merits of the IAA’s decision to refuse to grant the SHEV to the applicant. The jurisdiction of the FCCA is limited to considering only whether the IAA’s decision to refuse to grant the applicant the SHEV is lawful under the Act, that is, whether the decision of the IAA is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the IAA under s 24 of the FCA Act.
As a result it is not open to the Court to receive further evidence in support of the applicant’s visa application or to consider the merits of his application for a visa afresh. Nor is it appropriate for the court to revisit the findings of the IAA insofar as they constitute findings going to the credit of the applicant. That is a matter that is within the province of the IAA, and a disagreement with that finding will not, without more, amount to jurisdictional error. Nothing contained in the applicant’s submissions suggests that the IAA fell into jurisdictional error in its credit findings. Further, it is not open to this Court to receive fresh evidence in relation to the visa application, as the applicant submitted it should. Accordingly, I am unable to accept the oral submissions advanced by the applicant. I now turn to the proposed grounds of appeal.
Ground 1 is in effect that the proceeding to which the application relates “involves a question of law”. Even making suitable allowances for the fact that the applicant is self-represented, this ground cannot be regarded as raising a ground of appeal from the decision of the FCCA. It must be set to one side.
Ground 2 is that there is “jurisdictional error in the order”. No particulars are provided and amounts to little more than an ambit claim that there might be some error in the reasons given by the primary judge. I have considered the grounds raised before the FCCA, and the reasons given by the primary judge in the context of those grounds. Taking the reasons given and the proposed ground at a reasonably impressionistic level, in my view there is not a sufficiently arguable case for jurisdictional error.
Having regard to the collective considerations that I have identified above, in my view it is not in the interests of justice to grant the extension of time sought by the applicant or to grant the orders sought in his interlocutory application of 17 September 2018.
Accordingly, the application must be dismissed with costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 30 November 2018
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