BDQ16 v Minister for Immigration
[2016] FCCA 3464
•3 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDQ16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3464 |
| Catchwords: MIGRATION – Substantive application seeking review of the decision of the Administrative Appeals Tribunal – whether Tribunal failed to consider the issue of the intention of the authorities – whether Tribunal failed to consider documents provided to it – alleged breach of s.424A of the Act. PRACTICE & PROCEDURE – Application for an extension of time within which to make a substantive application – whether it is in the interests of the administration of justice to extend time – consideration of factors going to an extension of time – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 424AA, 424A, 425, 476, 477 |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 SZTAL v Minister for Immigration & Anor [2015] FCCA 64 |
| Applicant: | BDQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1196 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 3 November 2016 |
| Date of Last Submission: | 3 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2016 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Ms S Sangha of Mills Oakley |
ORDERS
The application to extend time made pursuant to Section 477(2) of the Migration Act 1958 (Cth) is refused.
The applicant pay the first respondent’s costs set in the amount of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1196 of 2016
| BDQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”), made on 11 May 2016, seeking an order that the Court extend the time within which to bring a substantive application to the Court pursuant to s.476 of the Act, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 24 March 2016, which affirmed the decision of the Minister’s delegate not to grant a protection visa to the applicant.
The following affidavit material was before the Court. First, the applicant’s affidavit made on 5 May 2016. This was read into evidence. I note that another affidavit made by the applicant on that date, which accompanied his application to the Court, simply annexed a copy of the Tribunal’s decision record and was not read into evidence. Second, the applicant’s affidavit of 13 October 2016. This goes to the question of the applicant’s delay in making his substantive application to the Court. This was also read into evidence.
Third, the affidavit made by the applicant on 17 August 2016 was not read into evidence. The stated purpose of the affidavit was to put before the Court certain documents, which plainly went to the question of the applicant’s claimed fear of harm if he were to return to his home country. Further, the attached documents were not before the Tribunal, nor were they part of the process of the applicant’s application for the visa. In any event, the applicant’s documents attached to the affidavit do no more than seek to engage in impermissible merits review.
Fourth, also in evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
It is quite clear, as was seen from the applicant’s evidence, that the applicant had relied on “friends” and various people to whom he was referred by friends, to seek to make his application to the Court. The applicant himself, with respect, had little understanding of the relevant issues. While I sought, as far as possible, to explain the relevant processes to the applicant, ultimately, as was clear from his submissions, he is focused on obtaining a visa to remain in Australia. The granting of such a visa is clearly not within the jurisdiction of the Court.
Section 477(1) of the Act provides that applications made pursuant to s.476 of the Act seeking review of a migration decision, must be made within 35 days of the date of that decision. In the current case, the relevant migration decision is the Tribunal’s decision that was made on 24 March 2016. The application to the Court was made on 11 May 2016. Given that s.477(1) provides for a 35-day time period, the application made to the Court is 13 days late. It is, therefore, not a competent application.
However, the applicant has made an application in writing pursuant to s.477(2) of the Act, asking the Court to extend the time within which he can make his substantive application. He asserts that it is in the interests of the administration of justice to do so.
The elements, or factors, that the Court may consider regarding the exercise of the discretion as to what is in the interests of the administration of justice, are not finite. However, it may be said that in the current circumstances, the elements, or factors, that appear for immediate consideration are as follows. The extent of the delay and whether any satisfactory explanation has been provided for it. Whether there is any prejudice to the Minister. Whether the grounds of the amended proposed substantive application contain such legal merit as to warrant the extension of time. Further, the public interest (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, 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 see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 (“Hunter Valley Developments”) at [18] – [23]).
The applicant appeared in person before the Court. He was assisted by an interpreter in the Tamil language. The Minister was represented by a solicitor. The applicant was cross-examined in relation to two of his affidavits that were in evidence. In essence, his evidence was focused on the preparation of the various documents that were filed in these proceedings with the Court, and on the question of the circumstances in which he said he became aware of the Tribunal’s decision, and subsequently made his application to the Court.
It is important to note that the affidavit of 5 May 2016, which is in evidence before the Court, asserts that although he attended an “interview” with the Tribunal on 3 March 2016, the applicant did not receive any notification of the outcome of the Tribunal’s decision. The applicant’s subsequent evidence, both in his second affidavit, and certainly orally before the Court, contradicts that initial evidence.
The applicant also gave evidence that his affidavit of 5 May 2016 was drafted for him by a Mr John Phillip Sweeney, whom the applicant said he understood from friends was a “lawyer”. It is the applicant’s evidence that he consulted Mr Sweeney, and that he did not know what was in the affidavit which he said was drafted by Mr Sweeney, and which was also not translated for him. On this basis, I prefer the applicant’s subsequent oral evidence, in which he said that he did receive notification of the Tribunal decision in circumstances which I will describe in a moment.
The applicant also relied on his affidavit of 13 October 2016. In this affidavit, the applicant states that he does not recall receiving the email from the Tribunal notifying him of the decision, and that he was not aware that the Tribunal had made its decision until he received a call, or a message, from an officer of the Minister’s department sometime in May 2016. The delay, therefore, in making his application to the Court was said to be because the Tribunal’s decision did not come to his attention in March 2016, or prior to the call from the departmental officer in May 2016.
Once the applicant became aware of the Tribunal’s decision, the affidavit asserts that he began to approach lawyers to assist him in making his application to the Court. In oral evidence today, the applicant explained that the call from the Minister’s department was made some time in the first week in May 2016, and that the lawyer, or the person whom he understood to be a lawyer, that he approached was Mr Sweeney.
The relevant evidence before the Court is also as follows. In his application to the Tribunal, the applicant provided an email address. He agreed, in writing, in that application, to the Tribunal sending correspondence to him at that email address. In oral evidence before the Court today, the applicant confirmed that he “made” the application for review to the Tribunal himself, that he understood a “little bit” of English, and that he signed the document. However, he also said that he did not read, or understand, certain parts of the document. In this context, he could not explain why he nonetheless ticked “yes” in answer to the question on the application form: “[d]o you agree to the Tribunal sending all correspondence by email…?”
It is the case that the Tribunal did send subsequent correspondence by email, dated 18 November 2014, acknowledging the application it had received from the applicant, to the email address the applicant had provided to it (CB 123 to CB 124). There is nothing in the affidavit evidence to say that the applicant did not receive that email. However, the applicant’s oral evidence before the Court was, variously, that he could not remember, could not recall, or did not “access” this email. In any event, what is far clearer, is that the Tribunal also wrote to the applicant by letter dated 2 February 2016 inviting the applicant to attend a hearing before the Tribunal. This also was also sent by email to the email address provided by the applicant (CB 125 to CB 127). I note also that the letter provided advice to the applicant that if there was difficulty in opening the email, he should contact the Tribunal.
The letter from the Tribunal also appears to have required the applicant to provide a completed “Response to Hearing Invitation” form (CB 127.2). The applicant responded by sending the completed form to the Tribunal dated 2 March 2016, although the method of delivery of that document to the Tribunal is not clear (CB 129 to CB 131). The applicant therefore received and accessed earlier correspondence from the Tribunal sent to the email address that he provided to it. The notification of the Tribunal’s decision was sent, again, to the same email address provided by the applicant in his application to the Tribunal.
It is important to note the actual evidence provided by the applicant in this regard. As stated earlier, I do not accept the applicant’s initial evidence, given his own subsequent evidence, that he did not receive any notification of the Tribunal decision. In his subsequent affidavit, the applicant says that he was not aware that the Tribunal had sent its notification, that he did not see the email, and that the email did not come to his attention in March 2016 (see [9] of the applicant’s affidavit made on 13 October 2016).
However, if it is the applicant’s position that the written notice did not come to his attention in March 2016, this requires close attention to other parts of the applicant’s oral evidence before the Court today. That evidence was that he did not regularly check his email. While it is now his practice to “check” the email once every “two to three weeks”, at the time of notification of the Tribunal’s decision record, he did not check his email between 24 March to sometime in early May 2016. In short, the totality of the applicant’s evidence was unclear and it must be said, appeared to be tailored at any one point, to addressing the lack of clarity or inconsistencies otherwise in his evidence.
The applicant also gave evidence that he had some expectation that the Tribunal would write to him by letter directed to his postal address. He did not satisfactorily explain why he had that expectation, in circumstances where the Tribunal had never corresponded with him by letter sent to his postal address, and also in circumstances where he had agreed to the Tribunal sending him correspondence by email, and indeed, appears to have received, and did receive, the invitation to the hearing sent to him by email.
Ultimately, it was the applicant’s evidence before the Court where he said he “accepted” that it was his “error” that he did not become aware of the Tribunal’s decision record because he did not check his email, to which some weight must be given.
In all, the evidence is such that the following appears to reasonably arise. The applicant provided an email address to the Tribunal, he agreed to receiving correspondence at that email address, he did receive correspondence by email inviting him to a hearing, and he attended the hearing before the Tribunal. The notification of the Tribunal’s decision was sent by the same medium to the same email address. Despite the importance of the process before the Tribunal, and his application before the Tribunal, for some reason which was not satisfactorily explained, he elected not to look at his email for some extended period directly relevant to the period following the Tribunal hearing.
It must also be said that the explanation provided by the applicant for these events was lacking in relevant detail and consistency. On the applicant’s own evidence, the findings that can be reasonably made are as follows. He provided an email address to the Tribunal and he agreed to receive correspondence from the Tribunal by email. In these circumstances and at what would have been the relevant time known to him because he had attended a hearing before the Tribunal, he elected not to check his email, conduct for which he now accepts as being his “error”. This does not provide a satisfactory explanation for the delay.
The delay in this case is only 13 days. This is not a long period, but that relatively short period must be seen in light of the failure of the applicant to provide a satisfactory explanation for it. This is a matter that weighs against the exercise of the discretion to extend time in the applicant’s favour.
However, what is of greater weight against the exercise of the discretion to grant the extension of time, is the lack of such merit in the grounds of the amended proposed substantive application to warrant the extension of time.
Plainly this is not a final hearing of any such application. The question for the Court today is not whether the grounds can be made out, but rather, whether the grounds raise some reasonably arguable legal argument that calls for the extension of time. In short, whether the grounds have such merit that time should be extended so that they can be more fully considered at a final hearing. The original proposed substantive application contained one ground. The applicant was given the opportunity by orders made by the Court to provide an amended proposed substantive application and he has done so.
In relation to the grounds of the amended proposed substantive application, I note that the Minister, in his written submissions, has conveniently set out the background of the applicant’s claims and a comprehensive representation of the Tribunal’s reasoning and findings. In my view, the Minister’s submissions are a fair and accurate summary of the background that appears in the CB, and of the Tribunal’s reasoning and decision, and for the sake of convenience today, I adopt [11] – [20] of the Minister’s written submissions filed on 27 October 2016:
“Background to the applicant’s claims
[11] The applicant is a citizen of Sri Lanka who arrived unlawfully by boat on 20 February 2013 and applied for a Protection visa on 20 June 2013: CB 98.2. The applicant claimed to fear harm for reasons of his actual and imputed involvement with the [Liberation Tigers of Tamil Eelam], interactions with and failure to report to the CID, unlawful departure from Sri Lanka and returning as a failed asylum seeker: CB 147, par 4. Specifically, the applicant claimed that he was forcibly recruited by the LTTE in January 2009 but managed to escape that same night when he was sent to collect water from a well that was 1km away: CB 73.6-74.2. His family were detained in a Sri Lankan Army camp in May 2009: CB 74.5.
[12] The applicant claimed that whilst at the camp, his
brother-in-law was taken to a detention centre for those with LTTE connections but the applicant was allowed to return to his family because he was young: CB 74.8. One month later, the applicant was taken by the CID for questioning and was ‘repeatedly’ slapped on his face. In July 2010, the applicant and his family were allowed to leave the camp: CB 74.9. In November 2012, the applicant was visited by three CID officials and was taken to the CID office where he was questioned about involvement with the LTTE. He was allowed to leave but was told he needed to report to the CID every month: CB 75.3. The applicant made arrangements to leave Sri Lanka.
The Tribunal’s decision
[13] On 24 March 2016, the Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa: CB 144-162. The Tribunal had significant concerns about the truth of central aspects of the applicant’s claims and evidence, as well as with his general credibility as a truthful witness: CB 148, par 9.
[14] The Tribunal found the applicant’s claims that he was forcibly recruited by the LTTE ‘changed significantly over time’: CB 148, par 11. On the basis of ‘multiple, significant discrepancies’ in the applicant’s evidence, the Tribunal was not satisfied that the applicant was forcibly recruited by the LTTE: CB 151, par 22. The Tribunal also found that his evidence regarding his interactions with the CID changed and was ‘internally inconsistent and unconvincing’: CB 151-152, pars 23-29. The Tribunal was not satisfied that the applicant was questioned or slapped by the CID or that he had been perceived by the CID as having any direct involvement with the LTTE and was required to report to the CID: CB 152, par 29.
[15] The Tribunal was not satisfied on the evidence before it, that the applicant had a brother in law who was known to the CID as having links to the LTTE or that he, or any member of his family unit, had any actual or imputed involvement with the LTTE: CB 152-153, par 31. The Tribunal also expressly considered other documents submitted by the applicant including newspaper articles in relation to his claim that his grandmother was killed in a bomb blast. Whilst it accepted that his grandmother was killed during the war, it did not accept that the applicant had any adverse profile or faced any risk of harm in connection with that occurrence: CB 159, par 59. The Tribunal was entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
[16] The Tribunal accepted that the applicant was a Tamil male from Kilinochchi and that in the days of the conflict (prior to May 2009), this may have been sufficient to constitute a risk profile: CB 153, par 34. However, the Tribunal relied on independent country information (ICI) which indicated the situation had changed, and after considering the applicant’s personal circumstances including his family situation, the Tribunal was not satisfied that being of Tamil ethnicity and/or a Tamil male from Kilinochchi gives the applicant any actual or imputed political opinion linked to the LTTE or opposed to the Sri Lanka authorities, or otherwise gave rise to a real chance of serious or significant harm to the applicant in Sri Lanka in the reasonably foreseeable future: CB 153, par 35.
[17] Although the applicant did not claim to fear harm for the reason of his unlawful departure, the Tribunal considered whether he would face harm on this basis: CB 153, pars 37-38; CB 157-158, pars 52-53. The Tribunal relied on ICI that indicated standardised procedures applied to all returnees on arrival at the airport, including police and security clearances, but found the applicant did not have a profile that would warrant further questioning: CB 154, par 39.
[18] The Tribunal also relied on ICI that indicated returnees who had left the country unlawfully were arrested at the airport and brought before a court to apply for bail, which was routinely given on recognisance although a family member was required to provide surety: CB 154, par 40. The applicant gave no evidence to suggest that he or his family would not be willing or able to provide any bail or surety: CB 154, par 40. The Tribunal noted that if a returnee arrived over a weekend or on a public holiday then they might be placed in remand in conditions that were ‘cramped, uncomfortable and unpleasant’ until a bail hearing was available. However, the Tribunal found there were no reports that returnees had been subjected to torture or deliberate mistreatment: CB 154, pars 41; CB 157, par 53.
[19] The Tribunal noted that the penalties imposed on returnees involved the imposition of a fine and had regard to the amount of the likely fine. It found no evidence that the applicant would be unable to pay the fine or that such a fine would give rise to serious or significant harm: CB 154-155, par 42. The Tribunal was not satisfied that the applicant had an individual profile that would result in him being processed in a discriminatory way. It concluded that the applicant did not face a real chance of serious or significant harm for the reason of his unlawful departure: CB 155, pars 43; CB 158, par 56.
[20] The Tribunal also accepted that the applicant would return to Sri Lanka as a suspected failed asylum seeker (CB 155, par 44) but relied on ICI that indicated the screening process was the same for all persons returning to Sri Lanka. As already noted, it relied on a report from the UK Home Office October 2012 report to find that the risk of harm upon return was “highly speculative”: CB 156-157, pars 49-50. It also accepted that the applicant would go through a process that would bring him into contact with the Sri Lankan authorities but was not satisfied that he had any adverse profile or that he would face serious or significant harm as a returned Tamil failed asylum seeker: CB 157-158, pars 51, 53 and 56.”
[Footnotes omitted.]
[Errors in original.]
The applicant did not provide any explanation of his grounds in the amended proposed substantive application, or make any submissions of relevant substance. It may be that he was unable to do so in circumstances where the applicant’s evidence was that a “lawyer”, to whom he was introduced by a friend, arranged to meet him at a railway station and drove him to his home, where, upon payment of $1000, he provided the applicant with the grounds of the amended proposed substantive application.
The grounds of the amended proposed substantive application are in the following terms:
“Ground 1
The Tribunal fell into jurisdictional error in dealing with the Applicant’s bail when it found the Applicant would be charged under I & E Act for illegal departure and be released on bail. The Tribunal did not provide applicant opportunity to be heard on this issue. The Tribunal thereby denied the Applicant procedural fairness.
Particulars
1.1 The Tribunal did not consider the issue of intention on part of the authorities which was intentional.
1.2 The Tribunal did not ask the correct questions regarding the handling of bail
1.3 The Tribunal failed to address whether the Applicant would meet bail and whether the Applicant’s family members would be able to act as guarantor. The Tribunal denied the Applicant procedural fairness in respect of findings concerning bail.
1.4 The Tribunal committed jurisdictional error.
Ground 2
The Tribunal fell into jurisdictional error in failing to give genuine and realistic consideration to the information given at the hearing. The Tribunal did not properly consider the documents.
Particulars
2.1 The Tribunal did not give genuine and realistic consideration to the documents give at the hearing.
2.2 The Tribunal failed to proper give consideration to critical document that the Applicant’s brother – in – law was LTTE member [57] – [62]) and there was lack of sufficient justification for the rejection.
2.3 The Tribunal committed jurisdictional error.
Ground 3
The Tribunal did not have any fair process of assessing my credibility and denied procedural fairness.
Particulars
3.1 The Tribunal did not consider various documents provided by applicant and did not engage with my claims.
3.2 The Tribunal placed too much emphasis on one or two facts in rejecting the documents I provided at the hearing (Court Book p 155).
3.3 The Tribunal did not give the Applicant opportunity or proper opportunity to address any concerns why the documents would not be considered
3.4 The Tribunal committed jurisdictional error.
Ground 4
The Tribunal denied procedural fairness and thereby breached s 425 of the Act.
Particulars
4.1 The Tribunal did not engage with the claims raised by the Applicant.
4.2 The Tribunal misapprehended the claims.
4.3 The Tribunal did not give the Applicant opportunity to address any concerns about the claims..
4.4 The Tribunal committed jurisdictional error.
Ground 5
The Tribunal committed jurisdictional error in not complying with the requirement under paragraph 424A and / or 424AA of the Act as it did not give ‘clear particulars’ of the information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review.
Particulars
5.1 The Tribunal fell into jurisdictional error in not complying with the requirement in paragraph 424a / 424AA of the Act that it ensure as far as is reasonably practicable the applicant understood the relevance of information, the particulars of which it purported to give the applicant.”
[Errors in original.]
Proposed ground one asserts that the Tribunal fell into jurisdictional error when it found, that on return to Sri Lanka, the applicant would be charged under the relevant Sri Lankan laws for illegal departure, and would be released on bail. The complaint in the ground appears to be that the Tribunal did not give the applicant the opportunity to be heard on this issue, and the applicant was therefore denied procedural fairness.
Some care must be taken here in actually understanding what the ground is trying to assert. The Minister, in his written submissions, and as subsequently explained orally before the Court, says that the applicant did not claim to fear harm on this basis ([23] of the Minister’s written submissions):
“The applicant did not claim to fear harm on this basis: CB 153, pars 37-38. In any event, the Tribunal decision record indicates that the Tribunal discussed ICI with him, which indicated that standardised procedures applied to all returnees on arrival at the airport, including police and security clearances, but found the applicant did not have a profile that would warrant further questioning: CB 154, par 39. Further, the Tribunal found that returnees who had left the country unlawfully were arrested at the airport and brought before a court to apply for bail, which was routinely given on recognisance although a family member was required to provide surety: CB 154, par 40. The applicant gave no evidence to suggest that he or his family would not be willing or able to provide any bail or surety: CB 154, par 40. His evidence to the Tribunal was that his father worked as a paddy farmer cultivating rice, his brother worked driving a three wheeler, he was in regular contact with his family in Sri Lanka and did not identify any immediate family members experiencing any form of harm: CB 153, par 35.”
That is, that the applicant did not claim that he would be subject to a particular process on return to Sri Lanka as a result of having left illegally. In my view, the ground does not contend that the applicant actually made this claim, but the focus of the ground is that, in making its finding, in considering this matter, the Tribunal failed to give the applicant the opportunity to address it. That is, it failed to give him “procedural fairness” because it denied him the opportunity to be heard.
It is clear that there is no evidence that the applicant ever made any such express claim to fear harm on this basis. Rather, in my view, on a fair reading of the Tribunal’s decision, the Tribunal properly looked to all of the factual circumstances presented by the applicant in his application. In this light, the factual scenario before the Tribunal, which it accepted, was that the applicant had left Sri Lanka illegally by boat without a passport and, therefore, would be returning to Sri Lanka as a failed asylum seeker.
In my view, even though the applicant did not make an express claim to fear harm in this regard, it was appropriate on the facts otherwise accepted by the Tribunal, that it consider this issue. In this light, focusing on the ground, and particulars 1.2 and 1.3 to this ground, the assertion is that the Tribunal did not give the applicant the opportunity to be heard on the question of bail once the Tribunal had found that he would be charged for illegal departure, but then released on bail.
Despite the opportunity provided to the applicant, and it must be said, over a long period of time that this matter has been before the Court, he has not provided, nor indeed has he given any indication that he would provide, a transcript of the Tribunal hearing. On the only evidence that is available to the Court, that is, the Tribunal’s references in its decision record as to what happened at the hearing, it can be said that the Tribunal asked the applicant if he had any fears of harm connected with having left Sri Lanka illegally by boat and without a passport. The applicant’s reported response did not raise any concern about being detained for illegal departure. That is clear at [38] (at CB 153 to CB 154) of the Tribunal’s decision record.
Notwithstanding this, the Tribunal told the applicant about country information available to it, which revealed that a “standardised procedure” applied to all returnees to Sri Lanka at the airport. The Tribunal explained that while there may be questioning by police and security officials at the airport, this was relevant to persons with a particular profile. The Tribunal found that the applicant did not have an adverse profile that would warrant such questioning ([39] at CB 154).
It is to be remembered that the applicant’s ground as pleaded asserts a denial of procedural fairness because it is said that the Tribunal did not provide the applicant with the opportunity to comment on being charged on arrival and being granted bail. On the only relevant evidence before the Court, that assertion in proposed ground one must be rejected.
The Tribunal’s account of the hearing reveals that it discussed with the applicant country information available to it, outlining the process on arrival, and including being charged, detained for a short period and being released on bail. Various parts of the Tribunal’s decision record demonstrate that the Tribunal did discuss relevant country information with him, which included the matter of bail. For example, at [39] (at CB 154), where the Tribunal says “[a]s explained to the applicant”, and at [42] (at CB 154), the Tribunal stated “[t]he Tribunal also informed the applicant…”
As mentioned earlier, the Tribunal found that the applicant did not have any adverse profile that would warrant further questioning by the authorities (see [39] at CB 154). The Tribunal referred to country information that stated that “[b]ail is routinely given on the accused’s own recognisance although a family member is also required to provide surety” ([40] at CB 154).
Relevant to the proposed ground, and having put this to the applicant, the Tribunal reports that the applicant “gave no evidence to suggest that he/his family would not be willing or able to provide any bail or surety which may be requested” ([40] at CB 154).
Contrary to the applicant’s contention in the proposed ground and in particulars 1.2 and 1.3, the Tribunal did give him the opportunity to address the matters of illegal departure, including the matter of bail.
Particular 1.1 to proposed ground one asserts:
“The Tribunal did not consider the issue of intention on part of the authorities which was intentional.”
It must be said that, on its face, it is difficult to understand exactly what the person who assisted the applicant, or who drafted this for the applicant (described by the applicant as “Ravi”), meant by that. It may be that this was some inelegant attempt to assert that the Tribunal fell into legal error by not considering whether the prison conditions in Sri Lanka, where the applicant would be held on remand, were poor, and whether these poor conditions were “intentionally inflicted” by the authorities, such as to come within the definition of significant harm as set out in s.36(2A) of the Act and s.5 of the Act.
In short, it may be some shorthand attempt to try and raise the issue that was considered by this Court and by the Federal Court on appeal in SZTAL v Minister for Immigration & Anor [2015] FCCA 64 and SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. Whatever was attempted to be asserted here, no legally arguable prospect of jurisdictional error is revealed in the circumstances.
The Tribunal found that there were no reports that returnees to Sri Lanka had been subjected to torture or mistreated. It found, ultimately, that the applicant did not face a chance of “significant” or, it must be said, for that matter, “serious” harm, because of his unlawful departure. These were findings that were reasonably open to the Tribunal on what was before it (see also [55] at CB 158).
This may also be an attempt to assert that the question of the intention of the Sri Lankan authorities was not discussed at the hearing and the applicant was therefore denied procedural fairness. However, given the circumstances before the Tribunal, and the Tribunal’s factual findings which were reasonably open to it, then no question of the Sri Lankan authorities’ intention arose for consideration in the circumstances of this case.
In all, proposed ground one lacks merit such as to support the extension of time.
Proposed ground two asserts that the Tribunal fell into jurisdictional error because it did not give “genuine and realistic consideration” to documents that the applicant gave to the Tribunal at the hearing. Particular 2.2 draws specific attention to what it said to be the “critical document” which supported the applicant’s claim that his
brother-in-law was a member of the LTTE.
In the circumstances, this can only be seen as an attempt to challenge relevant factual findings made by the Tribunal which were reasonably open to it and which were made within the proper exercise of discretion.
Contrary to the applicant’s assertion, the evidence before the Court reveals that the Tribunal gave close and detailed consideration to the applicant’s documents (see [57] – [62] at CB 159). As the Minister submitted, attention is immediately drawn to the heading above [57] (at CB 159), “Documents provided at hearing also considered”. The Tribunal set out its consideration in relation to these documents at [57] – [62] (at CB 159) of its decision record. I agree with the Minister’s submission that the ground lacks any reasonable prospect of success.
In relation to the document the applicant describes as “critical”, the Tribunal accepted that the person named in the document was a former LTTE member. But it did not accept that this, and the other related documents, were relevant to, or were in respect of the applicant’s
brother-in-law as he claimed. The Tribunal’s reasoning for this was that the only evidence that the person referred to in the documents was the applicant’s brother-in-law, was the applicant’s own evidence.
The Tribunal had found that the applicant was not a truthful or reliable witness. That finding, and the antecedent findings that informed it, were all reasonably open to the Tribunal to make. In that light, therefore, the Tribunal did not accept that the documents were about the brother-in-law.
In these circumstances, the Tribunal did give “genuine and realistic consideration” to the documents. In effect, the complaint really is that the Tribunal found adversely to the applicant. The grievance with the Tribunal’s findings set out in proposed ground two is no basis of itself to find that any arguable case arises.
I should just also note that the Tribunal’s record also reveals that it expressly considered all the other documents provided by the applicant. The Tribunal’s evaluation of these documents, and the weight it assigned to them, as the Minister submits, was a matter for the Tribunal within the proper exercise of its jurisdiction.
In all, proposed ground two lacks such merit as to support the extension of time.
Proposed ground three asserts that the Tribunal did not employ a “fair process” in assessing the applicant’s credibility and thereby denied him procedural fairness. The particulars seek to explain this by asserting that the Tribunal failed to consider various documents he provided, and placed emphasis on what are said to be “one or two facts in rejecting the documents”. Further, that the Tribunal did not give him an opportunity to address its concerns about the documents.
It must be said that the particulars do not explain, nor did the applicant provide any explanation today, as to how it can be said that the Tribunal failed to consider his documents, or, for that matter, engage with his claims. What I have already said in relation to ground two above is sufficient to also answer this general assertion in proposed ground three.
I should also note that there is no document at CB 155 as asserted in the proposed ground, which the applicant otherwise says he gave to the Tribunal. Nor did the applicant explain this before the Court today.
What does appear at CB 155 is part of the Tribunal’s consideration, its conclusion on the question of unlawful departure, and the beginning of its consideration on the question of harm to the applicant as a failed asylum seeker. It may be that the reference to CB 155 is actually a reference to the Tribunal placing too much emphasis on the country information from the Department of Foreign Affairs and Trade which is referred to at [45] (at CB 155).
If that is the case, as I have already said, the choice and weight to be assigned to country information is for the Tribunal. In any event, the Tribunal’s conclusion as to the applicant’s lack of credibility was otherwise explained in relation to, and derived from, findings other than what appears in the country information from the Department of Foreign Affairs and Trade.
As to the question of procedural fairness, which is also referred to in proposed ground three, the Tribunal is not required to provide the applicant with a running commentary of what it thinks of the evidence before it. The Tribunal’s obligation at the hearing is to raise the issues dispositive of the review which were not live issues as a result of the delegate’s decision (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 and AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) FCR 494).
As I said earlier, there is no evidence from the applicant, despite opportunity to provide it, as to what occurred at the Tribunal hearing. In the absence of such evidence, it is not open to the Court to otherwise assume what may or may not have happened at the hearing (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241). On the evidence before the Court, the Tribunal did discuss the issues dispositive of the review, and this also included a discussion of the applicant’s documents. This ground also lacks merit such as to support the extension of time.
Proposed ground four asserts a denial of procedural fairness because of a breach of s.425 of the Act. The particulars, yet again, appear to be formulaic, and do not explain the ground beyond making some generalised assertions. There is nothing before the Court to support a contention that the Tribunal breached s.425 of the Act. As I said earlier, the Tribunal specifically raised its concerns about the applicant’s credibility and the credibility of his documents at the hearing. It gave him the opportunity to give his evidence and present his arguments. Ground four also lacks such merit such as to support the extension.
Proposed ground five asserts a breach of s.424A and s.424AA of the Act, because the Tribunal is said not to have given “clear particulars” of the “information” it considered “would be the reason or a part of the reason, for affirming the decision that was under review”. Again, consistent with the lack of specificity in all of the applicant’s proposed grounds, the particulars do not identify what specific “information” was caught by s.424A(1) of the Act, and in respect of which the Tribunal failed to comply with its relevant obligations. Nor did the applicant explain this before the Court today.
It is the case that there are a number of exceptions to the obligation set out in s.424A(1), and these are set out in s.424A(3) of the Act. Information that the applicant gave in writing in relation to his protection visa application, and all of the information that he gave to the Tribunal, including orally at the hearing, are exempt from the obligation in s.424A(1), because of s.424A(3)(ba) and (b) of the Act respectively. Country information falls within the exception set out in s.424A(3)(a) of the Act.
I note also that the term “information” for the purposes of s.424A and, consequently, in respect of s.424AA of the Act, given that that section is a mechanism by which the Tribunal may discharge its obligation orally at a hearing (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415), that is, the obligation under s.424A of the Act, was explained by the High Court in such cases as SZBYR v Minister for Immigration and Citizenship [2007] HCA 6; (2007) 235 ALR 609 (“SZBYR”) and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507.
For the most part, the “information” which it can be said the Tribunal in this case considered would be the reason or a part of the reason for affirming the delegate’s decision, either falls within one of the exceptions to the obligation, or was otherwise not “information” for the purposes of s.424A of the Act as explained by the High Court.
I do note, in its decision record, the Tribunal did make reference to “information” that the applicant gave at an interview to an officer of the Minister’s department on arrival in Australia. Plainly, anything that the applicant said at that time was not caught by the exception in s.424A(3)(ba) of the Act.
However, in its decision record the Tribunal specifically stated that it employed the mechanism available under s.424AA of the Act to relevantly discharge its obligation orally at the hearing.
In any event, even beyond all of this, what the Tribunal put to the applicant were, in effect, inconsistencies in the evidence that he gave to the Tribunal and what he had said at the interview. As the High Court made clear, “information” for the purposes of s.424A(1) of the Act does not extend to “identified gaps, defects or lack of detail or specificity” in evidence or to the conclusions arrived at by the Tribunal (SZBYR at [18]).
Before the Court today, the applicant sought to explain the inconsistencies orally, and said that he was “anxious and nervous”. The inconsistencies in his evidence were clearly put to him by the Tribunal. The Tribunal pointed out various inconsistencies, not only with what he said at the interview, but in what he had subsequently put in his Statutory Declaration, and in writing in relation to his application for a protection visa, and in relation to the review.
The applicant was given the opportunity to explain the inconsistencies before the Tribunal. He had been asked on a number of occasions by the Tribunal to offer some explanation. He offered nothing beyond denying he had ever said anything inconsistent. The Tribunal did not accept that explanation. The Tribunal considered it relevant that, on the applicant’s own evidence, he was assisted at the relevant times, by interpreters, in the Tamil language, who he had no trouble understanding. He gave no plausible explanation as to why the reports of the evidence he had given over time, and in his 2013 “Declaration” would incorrectly record his evidence (see [23] – [28] at CB 151 to CB 152). The Tribunal then went on to find that the significant discrepancies, particularly in his claimed involvement with the LTTE, were not overcome by the applicant’s responses or his evidence in its totality ([29] at CB 152).
In all, proposed ground five also lacks merit such as to support the extension of time.
As the Minister submits, the mere absence of prejudice to the Minister is not enough to justify the extension of time (Hunter Valley Developments). In the current case, the applicant has not provided a satisfactory explanation for the relatively short delay in making his application to the Court. But of greater weight is that the grounds of the proposed amended substantive application lack merit such as to warrant the exercise of the discretion in the applicant’s favour. The interests of the administration of justice are not served by extending time merely to consider, at a final hearing, formulaic grounds absent any meaningful particularity and which the applicant had drafted for him by a person who may or may not have been a lawyer.
It is appropriate in the circumstances that the application to extend time made pursuant to s.477(2) of the Act be refused. I will make the appropriate order.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 14 February 2017
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