BMN15 v Minister for Immigration
[2018] FCCA 1195
•16 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BMN15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1195 |
| Catchwords: MIGRATION – Extension of the applicant – delay short – no prejudice but no merits in application – extension refused. |
| Legislation: Migration Act 1958, s.477(1) |
| Cases cited: AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 BHK15 v Minister for Immigration and Border Protection [2016] FCA 569 BOG15 v Minister for Immigration and Border Protection [2018] FCCA 643 Craig v State of South Australia (1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 |
| Applicant: | BMN15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1697 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 20 April 2018 |
| Date of Last Submission: | 20 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 16 May 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondents: | Mr C. McDermott |
| Solicitors for the First Respondents: | Clayton Utz |
| Counsel for the Second Respondents: | No appearance |
| Solicitors for the Second Respondents: | Clayton Utz |
ORDERS
The application for an extension of time filed 23 July 2015 is refused.
The applicant pay the first respondent’s costs fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1697 of 2015
| BMN15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 10 June 2015 the Refugee Review Tribunal, now the Administrative Appeals Tribunal, provided its decision affirming the delegate’s decision not to grant the applicant the protection visa he sought. He applied for judicial review in this court on 23 July 2015. His application was filed seven days outside of the 35 day period limited by s 477(1) of the Migration Act 1958. He needed an order for an extension of time to commence this proceeding.
The minister accepted that the delay was short, that the applicant’s reasons for failing to comply with a 35 day time limit were plausible and that no relevant prejudice was suffered by the minister. However, the minister opposed the grant of an extension of time contending there was no merit in the application in the overall.
Synopsis
For the reasons that follow, I agree with the minister’s position. In my view the delay in bringing this proceeding was short, a plausible explanation was given for it, no prejudice was relevantly occasioned to the minister but the interests of the administration of justice were not served in this case by granting the extension of time sought because the application for judicial review was without merit. I refuse the extension of time application and order the applicant to pay the minister’s costs.
Short factual narration
The applicant is a Sri Lankan citizen. He applied for a protection visa on 6 December 2012. The minister’s delegate refused to grant the visa on 13 September 2013. The applicant applied to the tribunal and appeared before it on 17 March 2015. He had the assistance of an interpreter who translated from and into the Tamil and English languages. Prior to the hearing, on behalf of the applicant two submissions were filed with the tribunal by BMA lawyers in which detailed propositions of fact and law were put.
In essence, the applicant claimed to engage in Australia’s protection obligations by reason of his fear of local Sinhalese gangs operating in Chilaw. He contended that those gangs assaulted and harassed him and his family for many years on account of his Tamil ethnicity and on account of his being perceived as wealthy. He said local authorities would not provide protection to him.
In the tribunal
The tribunal’s reasons were detailed, spanning 70 paragraphs.
The minister’s written submissions were set out as follows –
9.At [10], the Tribunal identified the central issue on the review was whether the Applicant would be harmed if he returned to Sri Lanka ‘because of his Tamil race or as a wealthy Tamil or because he applied for asylum in Australia or because he left Sri Lanka illegally’. The Tribunal’s record of the evidence given by the Applicant at the hearing before it effectively appears at [11] to [28] of its decision-record.
10.In the context of the Applicant’s claim that he had been subject to extortion and assault from a criminal gang targeting Tamils in Chilaw, the Tribunal found the Applicant’s evidence to be ‘somewhat confusing and at times implausible’ (at [16]). Similarly, at [30], the Tribunal did not accept many of the Applicant’s claims because it considered the Applicant’s evidence to be ‘vague, implausible and inconsistent with country information’. The Tribunal’s substantive findings in relation to the Applicant’s claims were as follows:
a.Based on its assessment of available country information, the Tribunal found that the Applicant had not been personally extorted because of his involvement in executing a 'large contract', or his wealth (at [22], [31]). The Tribunal also found that the Applicant had not been targeted as a prawn farmer or fish trader (at [22] -[24], [32]). The Tribunal further found that the gangs that did operate in the district did not singularly target Tamils and that 'there was [no] racial component to the extortion' (at [33]).
b.Based on its assessment of available country information, the Tribunal rejected the Applicant's claim that the prawn farm linked to his contract had been destroyed by a gang, and the employees of the farm targeted. The Tribunal also did not accept that the owner of the prawn farm would have failed to report such extortion or not sought police assistance, and there was information that authorities had 'taken steps to address such extortion and intimidation in the past' (at [34], cf CB 134-135). On an alternative hypothesis, the Tribunal considered that the evidence as presented by the Applicant still supported the proposition that he personally was not the subject of the extortion, and 'at most' the Applicant may have paid money to extortionists on behalf of the owner of the prawn farm and that he was of no continuing interest as he had ceased working there (at (35]).
c.The Tribunal rejected the Applicant's claim to have been assaulted and robbed of a gold chain at a bus station 5 months after he commenced work on the prawn farm on the basis of its finding that the Applicant was not personally the subject of extortion and because the Tribunal considered the Applicant’s evidence of the gang knowing he carried extra money and owed them money to be 'implausible' and lacking credibility (at [36]).
d.The Tribunal then made a concomitant finding that the Applicant had not reported the theft to the police, and that there had been no home invasion incident by the gang in retaliation for that report (at [37]).The Tribunal concluded that the Applicant did not face a real chance of serious harm from the gang based on his past employment or his wealth (at (38]).
e.The Tribunal also rejected the Applicant's claim to have been extorted, assaulted and robbed because he was a Tamil (at [39]). In relation to extortion, the Tribunal noted country information that did not support the proposition that Tamils were targeted alone for extortion (at [40]), and further observed that even if the Applicant had been subject of extortion, the Applicant would be able to access State protection (at [41]).
f.The Tribunal found there were no official laws that discriminated against Tamils, and that there was only ‘low level discrimination in the implementation of [Sri Lankan] laws and policies’ (at [42]). The Tribunal also found that the Applicant would not be imputed with any connection to the Liberation Tigers of Tamil Eelam (LTTE) (at [43]), and would not therefore face serious harm on the basis of his being a Tamil (at [44]).
g.The Tribunal rejected the Applicant's claim to fear harm of extortion because he would be perceived to have gained wealth from being in Australia (at [46] -(47]). In making this finding, the Tribunal considered that the Applicant was likely to be viewed as having incurred debts and not to have accumulated wealth from being in Australia, and also had regard to country information that there was no evidence of mistreatment of returnees.
h.The Tribunal then extensively considered whether the Applicant might be harmed on the basis of his having departed Sri Lanka unlawfully:
i. The Tribunal found that the Immigrants and Emigrants Act 1945 (Sri Lanka) (the Sri Lankan Act), which imposed various penalties for the offence for unlawful departure from Sri Lanka, was not a ‘law ... [of] ... discriminatory intent or impact’, and a law of general application (at [51]).
ii. The Tribunal found that the Applicant would be remanded for one to several days if charged with an offence under the Sri Lankan Act, but would ultimately be granted bail (at [52], [54]).
iii. The Tribunal rejected the Applicant's claim that he had previously been arrested and charged with attempting to depart Sri Lanka unlawfully circa the end of the Civil War on the basis that it was latently made and not detailed (at [53]).
iv. Pending his grant of bail, the Tribunal considered, and rejected, the prospect of the Applicant being harmed while in remand on the basis of any perceived association with the LITTE (at [54]).
v. Pending his grant of bail, the Tribunal considered that the conditions in a prison context that the Applicant would be subject to did not give rise to the Applicant facing a real chance of ‘significant harm’ within the meaning of s 36(2)(aa) of the Act (at [55) -[62]). In so concluding, the Tribunal observed that the conditions within a prison context were not intentionally inflicted by Sri Lankan authorities, and arose as a consequence of 'inadequate resources and overcrowding' (at [61)).
vi. The Tribunal considered that the most likely penalty to be imposed on the Applicant by a Court for committing an offence under the Sri Lankan Act would be a fine rather than a sentence of imprisonment, that the Applicant could meet the likely fine imposed, and that the imposition of a fine did not amount to significant harm within the meaning of s 36(2)(aa) of the Act (at [63) -[65]).
i.The Tribunal concluded that the Applicant did not face a real chance of serious harm arising from his race, from having departed Sri Lanka unlawfully, any imputed political opinion or as a member of the particular social groups ‘returnees’ or ‘failed asylum seekers’. The Tribunal therefore concluded that the Applicant did not satisfy s 36(2)(a) of the Act (at [65), [67]).
j.The Tribunal also found that the Applicant did not satisfy s 36(2)(aa) of the Act arising from his claims concerning his race, being imputed as having a link to the LITTE, as a returnee, or failed asylum seeker, or arising from the operation of the Sri Lankan Act (at [66], [68]). [1]
[1] First respondent’s written submissions, filed 6 April 2018, p.2, pgs.9-10.
In this court
The applicant relied on two grounds of review. Expressed verbatim from his application, they were as follows –
1.The decision of the Tribunal:
(a)is affected by an error of law; and
(b)denied the applicant procedural fairness.
2.I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.[2]
[2] Applicant’s application, filed 23 July 2018, pgs.1-2.
Several things must be said of the grounds. First, no particulars were given of the grounds. It was not possible to determine from a plain reading of the grounds what propositions of fact or law the applicant relied on to make good his contentions that the tribunal fell into jurisdictional error. Ordinarily, one party asserts the existence of jurisdictional error along the lines espoused in such authorities as Craig v South Australia[3] or Minister for Immigration and Multicultural Affairs v Yusuf,[4] where the applicant asserts that the tribunal –
a)identified a wrong issue;
b)asked itself a wrong question;
c)ignored relevant material;
d)relied on irrelevant material; or
e)in some instances, made an erroneous finding or reached a mistaken conclusion.
[3] (1995) 184 CLR 163
[4] (2001) 206 CLR 323
In this case, it was not possible to see how the applicant advanced his case for jurisdictional error. He did not articulate any.
Where an applicant fails to provide particulars of his contentions about the existence of jurisdictional error, a creditable body of jurisprudence has held that the reviewing court is entitled to treat the grounds of application as meaningless. The cases in that category are consistent. They include those assayed by me in BOG15 v Minister for Immigration and Border Protection,[5] especially AQN15 v Minister for Immigration and Border Protection,[6] BHK15 v Minister for Immigration and Border Protection,[7] WZATH v Minister for Immigration and Border Protection[8] and WZAVW v Minister for Immigration and Border Protection.[9]
[5] [2018] FCCA 643
[6] [2016] FCA 571
[7] [2016] FCA 569
[8] [2014] FCA 969
[9] [2016] FCA 760
While those authorities enabled me to dismiss this application on the basis that no meaningful grounds to support the application for judicial review were asserted, there are other, more substantial reasons why I take the view that the tribunal’s decision was proper and that no basis has been shown for impugning it.
I agree with the minister’s submissions that there is no basis for me to conclude that the tribunal erred jurisdictionally. That is because –
14.…
a.There is nothing to suggest that the Tribunal's findings of fact concerning the credibility of the Applicant’s claims were not open to be made on the evidence before it.
b.There is nothing to suggest that the Tribunal was not cognisant of all of the Applicant’s claims to engage Australia’s protection obligations, and properly disposed of all those claims before it.
c.The findings of fact made by the Tribunal in reliance on country information were open in the circumstances.
d.The specific findings made by the Tribunal concerning the effect of the Sri Lankan Act as having no ‘discriminatory intent or impact’ and being a law of general application were open to be made on the available evidence.
e.The specific findings made by the Tribunal concerning the conditions the Applicant might face in a prison context (at [61]) were open to be made having regard to authority in the High Court of Australia ( SZTAL v Minister for Immigration & Border Protection).
f.The Tribunal's adoption of relevant factual findings under the rubric of the Refugees Convention for the purposes of complementary protection does not reveal any form of jurisdictional error.
15.Further, the Minister contends that there is no basis for this Court to conclude that the Tribunal failed to adhere to its procedural fairness obligations in Part 7 Div 4 of the Act. In particular, the Minister contends that the Applicant was properly given the opportunity to be heard on all dispositive issues on the review, including those matters that went to the credibility of his claims (see, [25]-[30] of the Tribunal’s decision).[10]
[10] First respondent’s written submissions, above n 1, pp.5-6, pgs.14-15
This was an extension of time application. Considerations that I had to take into account were observed in my decision in MZANW v Minister for Immigration and Border Protection.[11]
[11] [2016] FCCA 2639
Drawing the threads together
On behalf the minister, Mr McDermott of counsel quite properly submitted that in this case the applicant was able to show that the delay was short, an adequate explanation for it was given and no relevant prejudice was occasioned to the minister. However, he argued, again perfectly properly, that the substantive merits of the case were poor.
I agree.
It seemed to me to be immaterial whether the relevant enquiry concerned the applicant having an arguable case, a reasonably arguable case, a sufficiently arguable case or whether the case has reasonable prospects of success. On any of those formulations, the applicant failed. I say that even recognising that on an application for an extension of time an assessment of the case should be impressionistic and that it may be imprudent to transform the extension of time application into a de facto full hearing. In MZABP v Minister for Immigration and Border Protection,[12] the court expressed a cautionary note in that regard.
[12] [2015] FCA 1391
In my view, neither ground of review raised an arguable case of the existence of jurisdictional error of the sort contemplated in Craig or Yusuf.
I refuse the application for an extension of time.
I order the applicant pay the minister’s costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson
Associate:
Date: 21 May 2018
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