BEX15 v Minister for Immigration

[2016] FCCA 2153

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEX15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2153

Catchwords:
MIGRATION – Application for protection visa – review of decision of Refugee Review Tribunal – application for an extension of time to bring proceedings – significant delay – extension of time not granted – consideration of the interests of the administration of justice – lack of merit in proposed grounds – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2A), 91R, 422B, 424A, 477(1)

Cases cited:

MZABP v Minister for Immigration & Border Protection [2015] FCA 1391
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30

SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69

Applicant: BEX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1475 of 2015

Judgment of: Judge Smith

Hearing date: 14 July 2016 & 16 August 2016

Date of Last Submission: 16 August 2016

Delivered at: Sydney & Melbourne

Delivered on: 2 September 2016

REPRESENTATION

Solicitors for the Applicant: Mr R Gordon, Gordon Law

Counsel for the First Respondent: Mr N Wood

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application for an extension of the period within which to make an application for relief under s.476 of the Migration Act 1958 (Cth) be dismissed.

2. The application is otherwise dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1475 of 2015

BEX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 27 June 2012 and applied for a protection visa on 25 February 2013. A delegate of the Minister made a decision not to grant the applicant a protection visa on 9 December 2013 and the applicant applied to the Refugee Review Tribunal[1] for review of that decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. On 16 April 2015 the Tribunal made a decision to affirm the delegate’s decision. The applicant now seeks judicial review of the Tribunal’s decision. Such application must be made within 35 days of the date of the relevant decision: s.477(1) Migration Act 1958 (Cth). This application was filed on 29 June 2015, outside of that time period. However, subject to the following two conditions, the Court has the power to extend the period within which an application for judicial review may be made:

   477 Time limits on applications to the Federal Circuit Court

   …

   (2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   a)     an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   b)     the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3. There is no issue in these proceedings that the first of these conditions has been satisfied. The question then, is whether the Court is satisfied that it is in the interests of the administration of justice that an order be made extending the period within which an application may be made. Generally speaking, the considerations relevant to this issue will include the extent of the delay and the explanation for the delay, any prejudice to the respondent, any impact upon the applicant, the interests of the public at large and the merits of the substantive application. Consideration of the merits should only be at an impressionistic level and should not amount to a determination of whether the grounds would ultimately succeed at a substantive hearing: MZABP v Minister for Immigration & Border Protection [2015] FCA 1391 at [62]-[63].

4. The 35 day period prescribed by s.477(1) expired on 21 May 2015. As the application was filed on 29 June 2015, it was approximately five weeks out of time. In his application for review the applicant explained that he was gathering more information regarding his application. In his affidavit the applicant stated that he did not know what to do after receiving the decision refusing his review application. The applicant did not have a lawyer to explain to him what avenues of appeal were open to him. The applicant asked friends who had been in such a situation and was told that he should gather more information to include in his appeal. The applicant stated that he then sought advice from a migration agent and was advised to appeal the decision of the Tribunal to this Court.

5. The applicant was cross-examined on his affidavit and gave evidence that was largely inconsistent with it. Critically, he stated that he was told by the lawyers who had acted for him in the review process that he could apply to the Court for judicial review and that he had a limited time within which to do so. In re-examination, the applicant said that he had gone to Legal Aid who sent him a letter but he did not know how to fill in the forms. This, he said, was the reason for the delay.

6. I am not satisfied that there was any reasonable excuse for the delay in making an application for review. The applicant was well aware that he could seek judicial review and had the means of ascertaining how. First, the letter from the Tribunal that accompanied the decision included the following paragraph:

   …

   If you have any questions, please email [email protected], or contact me on the number listed below, or telephone the Tribunal’s national enquiry line on 1300 361 969. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

7. Secondly, contrary to the applicant’s initial assertion, the applicant was at the time of the decision represented by lawyers who were also migration agents. He had been represented by them during his visa application and then throughout the application to the Tribunal for review. It would have been a simple matter for him to contact his lawyers, as he had throughout the review process, in order to ascertain how to apply for judicial review of the Tribunal decision.

8. Thirdly, the applicant was able to apply to Legal Aid and later, to locate and obtain advice from a migration agent. He was not, as his solicitor appeared to suggest at the hearing, unable to take steps to advance his own interests.

9. In the end, I found the applicant an unsatisfactory witness who gave inconsistent evidence. I am unable to discern from the evidence exactly why the applicant took so long to apply for judicial review; however, I am satisfied that he had no reasonable excuse for doing so.

10. Although the delay was not extreme it was not insignificant.

11. The Minister did not suggest that there was any prejudice that might be caused by the grant of an extension of time however, it is generally in the interests of the administration of justice and the public interest in general, that challenges to administrative decisions are brought to Court quickly unless there is a reasonable excuse for failing to do so.

12. It is also necessary to consider the merits of any substantive grounds raised in the application. In addition to the grounds in the amended application, the applicant’s solicitor raised, without notice, 2 further grounds. I will consider them all.

13. In order to do so, it is necessary to set out briefly the relevant background facts as well as to summarise the reasons given by the Tribunal for its decision to affirm the delegate’s decision.

Background and claims

1. The applicant’s claims were accurately summarised by the Tribunal in the following passages of its reasons:

   [21] … He is a Tamil born in Koroor, Tamil Nadu, India in 1990. He lived there until 2004 before going to live in Sri Lanka illegally by sea with his family for three years before returning to India illegally by sea. He has no legal rights to return to India and is a Sri Lankan citizen. He departed India illegally by sea to come to Australia in June 2012.

   [22] The applicant’s family left Sri Lanka in 1989 due to the war. They lived as refugees in India in a camp. When they returned to Sri Lanka life was difficult because he was a young Tamil male with no identity card. He was stopped by the army a few times and they still have his details. They asked for his identity card and because his surname was the same as one of the LTTE’s[2] leaders he was questioned heavily. There was a bomb blast that took place near his home and the army came and arrested his family and took them to a camp for interrogation. Others who had identity cards were released but because he did not have one he was not released. On another occasion he was tied up and hit with a tree branch by the army. His father was also questioned and struck by the authorities.

   [23] The LTTE hit the applicant on a couple of occasions when he was standing in the street with friends and asked to go home.

   [24] The applicant’s family has LTTE connections through his uncle who was killed in 1990. His family is considered to be a “heroes” family. There was a statue of his uncle in their home village but it is no longer there. When he was in Sri Lanka the applicant attended martyrs day in which his uncle was remembered.

   [25] It was submitted that he was in danger due to his race, imputed political opinion and membership of particular social groups consisting of “failed asylum seekers from western countries” and “Sri Lankan Tamils who have lived as long term refugees in India”.

   [26] As a Sri Lankan Tamil who has spent the majority of his life in India the applicant is likely to face humiliating circumstances. He speaks with an Indian Tamil accent and does not have any close family in Sri Lanka who he would be able to permanently be able to rely on. He is unfamiliar with Sri Lanka and his home area and would struggle to create a living for himself.

   [2] Liberation Tigers of Tamil Eelam.

2. The applicant gave evidence and made submissions at the hearing conducted by the Tribunal on 14 April 2015 and the Tribunal made its decision on 16 April 2015.

Tribunal’s decision

1. The Tribunal accepted the following aspects of the applicant’s claims:

   a)the applicant was born in India in 1990 and his family had left Sri Lanka in 1989 due to the war;

   b)his family lived as refugees in India;

   c)his family returned to Sri Lanka in 2004 and departed illegally by boat in 2007;

   d)the applicant’s uncle was a soldier in the LTTE and was killed in 1990;

   e)local people in the applicant’s village made a statue of his uncle after his death however, the statute would no longer be there;

   f)the applicant’s grandfather was a tuition master and the LTTE would visit him and hide young students from the military with him, although this was before the applicant was born and his grandfather died in 2002;

   g)when the applicant returned to Sri Lanka he did not have an identity card although he attended school;

   h)the applicant and other boys were subject to round ups by the authorities and the applicant would be held longer due to his lack of identity card;

   i)there was a bomb blast that took place near the applicant’s home and the army came and arrested his family and took them to a camp for interrogation;

   j)on another occasion the applicant was tied up and hit with a tree branch by the army;

   k)the applicant’s father has the same name as an LTTE leader and was also questioned and struck by the authorities and taken to the camp on 4 to 5 occasions;

   l)the applicant attended a martyrs day in which the applicant’s uncle was remembered.

2. However, the Tribunal rejected other claims. While it accepted that the applicant was beaten by LTTE members on two occasions for standing around on the street, it did not accept that the LTTE ever visited his home. The Tribunal also did not accept that the authorities were looking for the applicant before he and his family left Sri Lanka in 2007.

3. In those circumstances, the Tribunal found that the chance that the Sri Lankan authorities or anyone else would now or in the reasonably foreseeable future, impute the applicant with a pro-LTTE political opinion was remote. For that reason, at [45] it found the applicant did not:

   … face a real chance of persecution now or in the reasonably foreseeable future from the authorities, paramilitary groups or anyone else for any Convention reason (including his actual and imputed political opinion or membership of a particular social group consisting of his family) for any non-Convention reason.

4. The Tribunal also found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there was a real risk that he will suffer significant harm on those bases.

5. The Tribunal next found that, given the LTTE no longer existed as an organised force and that any former LTTE members only had minimal capacity to exert influence on civilians or those returning from abroad, the applicant did not face a real chance of persecution or a real risk of significant harm from the LTTE for any reason.

6. The Tribunal also found that the chance or risk that the applicant would be persecuted or significantly harmed on account of being a young Tamil male in his home area or a Sri Lankan Tamil who had lived as a long-term refugee in India was remote.

7. The Tribunal accepted that, while the applicant may be subject to questioning upon his return to Sri Lanka, that would not constitute serious harm or significant harm and that he did not have a well-founded fear of persecution as a failed asylum seeker.

8. The Tribunal accepted that the applicant had illegally departed Sri Lanka by sea in 2007 however, because he was 16 years of age at the time and a minor, found that the risk that he would be punished under the Immigrant & Emigrant Act for that illegal departure was remote. It went on to make alternative findings on the assumption that he would be punished for his illegal departure. On that basis, the Tribunal accepted that the applicant faced a short term of detention prior to applying for, and obtaining bail, and that he would be fined as result of being charged under the laws of Sri Lanka. However, it found that any such detention or fine did not amount to persecution for a Convention reason because it amounted to the enforcement of a generally applicable law and was not discriminatory.

9. Further, while the Tribunal accepted that prison conditions in Sri Lanka were poor, it did not accept that the applicant faced a risk or real chance of persecution for any reason during that period of detention. It also found that any problems the applicant might face as a result of the prison conditions would not be aimed at the applicant for any Convention reason, but were factors which applied to the general population and not specifically to Tamils. Accordingly, the Tribunal found that the questioning, arrest, detention and the poor conditions in remand did not amount to systematic and discriminatory conduct as required by sub-s.91R(1)(c) of the Act.

10. The Tribunal found that the short-term detention, questioning and imposition of a fine did not amount to significant harm under s.36(2A) of the Act. The Tribunal also found that, again, while the prison conditions were poor, the short-term nature of any detention meant that it would not constitute significant harm. Further, the Tribunal found that the poor prison conditions were due to a lack of resources and the government’s willingness to address it meant that there was no intentionally inflicted severe physical or mental pain or suffering, or intentionally inflicted physical or mental pain which could reasonably be regarded as cruel or inhuman in nature. It also found that it did not involve any act or omission that caused, and was intended to cause, extreme humiliation which was unreasonable. The Tribunal also found that any treatment that the applicant might face upon return to Sri Lanka would not amount to significant harm as this would apply to a person in Sri Lanka who breached the illegal departure law.

11. For those reasons the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision under review.

Consideration

Grounds of amended application

1. There are two grounds in the applicant’s amended application, the second of which has four particulars. The first ground is that the Tribunal denied the applicant procedural fairness. The particular to this ground is that, while the Tribunal put to the applicant for comment the substance of country information concerning the treatment of Tamil asylum seekers and people who had left Sri Lanka illegally, it was very detailed and the applicant did not have a sufficient opportunity to digest the material. It was argued that the Tribunal ought to have given the applicant further time in order to provide a written response to the material.

2. There are a number of significant difficulties with this ground. The first is that, according to his solicitor, the applicant did not request any further time in order to consider and respond to the country information. In light of the fact that he was represented by a lawyer at the hearing, this suggests that nobody considered that any further time was needed in order to properly respond to the information. In the absence of a transcript no other inference is reasonably available.

3. The second is that there was no obligation on the Tribunal to disclose any such information. In light of s.422B the obligation of the Tribunal to disclose adverse information was limited to any obligation under s.424A of the Act. However, that obligation does not extend to information that is not specifically about the applicant or other person: sub-s.424A(3)(a). The information which the applicant says the Tribunal ought to have disclosed to him was not specifically about him or any other person but, rather, was about a group of people to which the applicant purported to belong. For that reason, the Tribunal was not obliged to disclose that information to the applicant and this ground has no reasonable prospects of success.

4. The first particular of the second ground is that the Tribunal failed properly to consider the risk that the applicant faced having sought asylum in Australia. It is not clear what is meant by the word “properly”. It is clear from the Tribunal’s decision (in particular at [56] – [62]) that the Tribunal did consider in detail the possibility that the applicant might face harm as a failed Tamil asylum seeker upon return to Sri Lanka. It did so by having regard to recent reports concerning the circumstances facing people in the applicant’s position in making findings of fact based upon those reports. There is no reasonably arguable error in the way in which the Tribunal approached its task of considering that aspect of the applicant’s claims.

5. The second particular of the second ground is that the Tribunal did not consider properly, or at all, the distinct integer of the applicant’s claim that he feared persecution on the Convention grounds of actual or imputed political opinion, based on his support and past very close family support of the LTTE. While it is true that the Tribunal accepted the applicant’s family’s historical connections to the LTTE (see [37] – [38]), it went on to conclude that, in spite of that history, the applicant did not face a well-founded fear of persecution or a real risk of significant harm as claimed. This contention has no reasonable prospects of success.

1. The third particular of the second ground is that:

   The Tribunal fell into jurisdictional error by failing to ask itself the correct question in law, whether, and to give proper, genuine and realistic consideration to the merits of the case presented by the applicant that, he had a well-founded fear of persecution involving serious harm.

2. That particular is stated at such a level of generality as to be entirely unhelpful in elucidating any potential jurisdictional error in the Tribunal’s decision. The summary of the Tribunal’s findings set out above reveals, in my opinion, that the Tribunal did properly consider all of the applicant’s claims. The Tribunal made findings concerning those claims based upon logical grounds and inferences drawn from the material before it. In other words, it properly fulfilled its obligation to “review” the delegate’s decision.

3. The final particular of the second ground is that the Tribunal did not properly consider the complementary criterion in sub-s.36(2)(aa), especially in connection with the prison conditions in Sri Lanka:

   … the state of the prison conditions in Sri Lanka, whereupon the government has been unwilling to address the abominable conditions, which in turn has the likelihood of intentionally inflicting physical and mental pain which can be regarded as cruel and inhuman.

4. The Tribunal considered the question of the effect of the prison conditions on the applicant in some detail: [66] – [68]. Contrary to the assertion in this particular, while the Tribunal accepted that the prison conditions in Sri Lanka were poor, it found that the government was willing to address the prison conditions: [67]. Further, its conclusion as to the intentional aspects of the phrase “significant harm” in the Act was consistent with the recent decision of the Full Court of the Federal Court of Australia in SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69. This ground too, has no reasonable prospect of success.

Grounds raised at the hearing

1. The first additional argument raised at the hearing was that the Tribunal erred because its finding of credit (at [42]) infected its other findings. The solicitor who appeared for the applicant argued that the Tribunal was required to consider each claim separately and that to allow its impression of the applicant as lacking credit to affect its other findings was unfair. He could cite no authority for that proposition. In my view, it is unarguable. The argument is inconsistent with the decision in Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 in which it was accepted that conclusions about the credit of an applicant can legally affect the determination of other issues.

2. The second additional issue arises from the following statement by the Tribunal:

   [66]... I note the applicant has an aunt in Sri Lanka who would be able to come and collect him from court and an amount of money would not need to be paid to obtain bail.

   …

3. The applicant argued that the Tribunal erred by failing to give the applicant particulars of the information about the aunt, and so breached s.424AA of the Act. However, there is no obligation under s.424AA. That provision only enables the Tribunal to comply with an obligation under s.424A in a manner other than in writing. Further, there was no obligation under s.424A revealed by this passage. First, the essential element of the passage is that the aunt “would be able to come to collect” the applicant. That is not “information”, but an inference drawn by the Tribunal from the fact that the applicant had an aunt who lived in Sri Lanka. Secondly, the fact that the applicant had an aunt who lived in Sri Lanka (which was information) was given to the Tribunal by the applicant, both in the delegate’s decision which was sent to the Tribunal by the applicant’s agents, and in his agent’s written submissions. For that reason, that information was excluded from the operation of s.424A(1) by virtue of sub-s.424A(3)(b). This ground has no prospects of success.

Conclusion

1. For those reasons, even taking into account the lack of prejudice to the Minister, in light of the extent of the delay and lack of reasonable explanation for the delay, there are insufficient merits in the substantive grounds for me to be satisfied that it is in the interests of the administration of justice to make an order extending the period within which an application for judicial review of the Tribunal’s decision may be made.

2. The application for an extension of the period under s.477(1) is dismissed. The application is otherwise dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 2 September 2016