BMV15 v Minister for Home Affairs
[2018] FCA 1948
•5 December 2018
FEDERAL COURT OF AUSTRALIA
BMV15 v Minister for Home Affairs [2018] FCA 1948
Appeal from: Application for extension of time: BMV15 v Minister for Immigration & Anor [2018] FCCA 377 File number: VID 378 of 2018 Judge: MOSHINSKY J Date of judgment: 5 December 2018 Legislation: Migration Act 1958 (Cth), ss 5, 36, 91R Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405
Date of hearing: 15 August 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 40 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr C van der Westhuizen of DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 378 of 2018 BETWEEN: BMV15
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MOSHINSKY J
DATE OF ORDER:
5 DECEMBER 2018
THE COURT ORDERS THAT:
1.The application for an extension of time to appeal be dismissed.
2.The applicant pay the first respondent’s costs, to be fixed by way of a lump sum.
THE COURT DIRECTS THAT:
3.Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.
4.In the absence of any agreement pursuant to paragraph 3 of these orders, within 21 days the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).
5.Within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).
6.In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
Introduction
The applicant, a Sri Lankan citizen of Tamil ethnicity and Hindu religion, seeks an extension of time in which to appeal from orders of the Federal Circuit Court of Australia.
For the reasons that follow, the application is to be dismissed.
Background
The applicant arrived in Australia by boat in July 2012.
On 18 December 2012, the applicant applied for a protection visa.
On 13 December 2013, a delegate of the first respondent (the Minister) refused the application for a protection visa.
The applicant applied to the Refugee Review Tribunal (the Tribunal) for review of the decision.
The applicant was represented in relation to the review by a migration agent.
On 17 April 2015, the applicant appeared before the Tribunal to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
On 28 June 2015, the Tribunal decided to affirm the decision to refuse the application for a protection visa.
The Tribunal set out the relevant law in relation to the refugee criterion and the complementary protection criterion at [5]-[19] of its statement of decision and reasons.
The Tribunal outlined the applicant’s protection claims at [22]-[29]. These claims included:
(a)The Sri Lankan government is confiscating land in the north and repopulating Tamil areas with Sinhalese people. The government is destroying temples, mosques and churches which is impacting on the applicant’s ability to follow his religion.
(b)In 2000, the applicant’s brother was forcibly taken from home by the Liberation Tigers of Tamil Eelam (LTTE) and since that time there has been no information or knowledge of his whereabouts.
(c)The applicant was placed in a camp between 2009 and 2010.
(d)After leaving the camp, he faced ongoing threats from the Sri Lankan Army (SLA) as they sought to determine whether he was associated with the LTTE. This occurred once a week over the next two years.
(e)The authorities continued to have an interest in the applicant’s family due to the family’s history and his brother’s association with the LTTE. The applicant claimed that he feared the Criminal Investigation Department, the Eelam People’s Democratic Party and the SLA.
The applicant’s representative claimed that the applicant feared harm because of:
(a)his ethnicity as a Tamil;
(b)his actual and imputed political opinion being a perceived sympathiser/ supporter of the LTTE or as someone seen to hold Tamil separatist views or views supporting a renewal of hostilities against the government of Sri Lanka; and
(c)his membership of the particular social group of failed asylum seekers or failed asylum seekers involuntarily returned to Sri Lanka.
The Tribunal outlined the evidence before the Tribunal at [30]-[44].
The Tribunal then assessed the applicant’s refugee claims, first considering, at [45]-[56], whether the applicant had a well-founded fear of persecution as a result of links or perceived links to the LTTE. The Tribunal found, at [55], that neither the applicant nor his family members had ever been seriously harmed within the meaning of s 91R(1)(b) of the Migration Act 1958 (Cth) or significantly harmed within the meaning of s 36(2A) or s 5 of the Act on account of any perceived links to the LTTE or because his brother fought for the LTTE. The Tribunal found that there was no real chance that the applicant would be seriously harmed in the reasonably foreseeable future on account of any perceived links to the LTTE or because his brother was a member of the LTTE and that any fear of persecution was not well-founded.
The Tribunal considered whether the applicant had a well-founded fear of persecution due to ‘Sinhalisation’ of his area at [57]-[58] and rejected this claim.
The Tribunal considered whether the applicant had a well-founded fear of persecution due to his religion at [59]-[61]. The Tribunal found that the applicant had not been prevented from practising his religion, and that there was no real chance that the applicant would be prevented from practising his religion or that he would be seriously harmed in the reasonably foreseeable future on account of his religion and that any fear of persecution was not well-founded.
The Tribunal considered whether the applicant had a well-founded fear of persecution due to his Tamil ethnicity at [62]-[66] and rejected this claim. The Tribunal found that the applicant had never been harmed as a result of his brother’s connection to the LTTE or because of any perceived connections to the LTTE. The Tribunal found that there was no real chance that the applicant would be seriously harmed in the reasonably foreseeable future on account of his Tamil ethnicity and any fear of persecution was not well-founded.
At [68]-[76], the Tribunal considered whether the applicant would be harmed as a failed asylum seeker or due to his illegal departure. The Tribunal found that there was no real chance that the applicant would be seriously harmed in the reasonably foreseeable future on account of being a failed asylum seeker and any fear of persecution on this basis was not well-founded. For the same reasons, the Tribunal was satisfied that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka there was a real risk that he would suffer significant harm.
The Tribunal also considered, at [77]-[85], whether the applicant faced a real chance of persecution as a result of being prosecuted under the Immigrants and Emigrants Act 1948 (Sri Lanka).
The Tribunal concluded, at [87], that the applicant did not have a well-founded fear of persecution for a Refugee Convention reason, and that the applicant was not a refugee.
The Tribunal then considered the complementary protection criterion, at [88]-[103]. The Tribunal concluded that it was satisfied that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka there was a real risk that the applicant would suffer significant harm, and that the applicant was not owed complementary protection.
The Tribunal also considered the applicant’s claims cumulatively, at [104]-[105].
The proceeding in the Federal Circuit Court
The applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. A hearing took place before the primary judge on 18 October 2017. The applicant appeared for himself at the hearing.
The applicant’s application for judicial review contained two grounds. The second ground stated that he had made an application for legal aid. The first ground was as follows:
1. The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.
On 23 February 2018, the primary judge published reasons for judgment (the Reasons) and made orders dismissing the application for judicial review.
The primary judge set out the background to the application for judicial review at [1]-[10] and summarised the Tribunal decision at [11]-[25] of the Reasons.
With respect to ground 1(a) of the application, the primary judge stated that there was nothing in the Tribunal decision record that revealed that the Tribunal engaged in jurisdictional error (Reasons, [31]). The primary judge stated that she was satisfied that the Tribunal gave genuine consideration to all of the applicant’s claims and that the Tribunal’s reasoning was logical and cogent (Reasons, [32]).
The primary judge considered whether jurisdictional error arose from the Tribunal’s consideration of “significant harm” if the applicant were to be detained in poor prison conditions on return to Sri Lanka. The primary judge considered the judgment of the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405 and concluded that the Tribunal’s reasoning in relation to whether the applicant would suffer “significant harm” was consistent with the approach in SZTAL and disclosed no jurisdictional error (Reasons, [39]).
With respect to ground 1(b), the primary judge noted that the applicant was invited to give evidence and present arguments relating to the issues, and the applicant attended the Tribunal hearing on 17 April 2015 assisted by his migration agent, and with the assistance of an interpreter. The primary judge was not satisfied that the applicant was denied procedural fairness (Reasons, [42]).
The application for an extension of time
On 9 April 2018, the applicant filed an application for an extension of time to appeal, supported by an affidavit of the applicant dated 6 April 2018. The period in which to file a notice of appeal is 21 days after the judgment was pronounced or the order was made. The judgment and orders of the primary judge were made on 23 February 2018. Accordingly, the notice of appeal was required to be filed by 16 March 2018. The applicant requires an extension of about 24 days.
In considering an application for an extension of time, the relevant considerations include the length of the delay, the applicant’s explanation for the delay, any prejudice to the respondent and the substantive merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.
The Minister does not rely on prejudice to the Minister. The relevant factors to be considered are therefore the length of the delay, the applicant’s explanation for the delay and the substantive merits of the proposed appeal.
The period of the delay is relatively short but not insignificant.
By way of explanation for the delay, the applicant states in his affidavit that: he was seeking legal representation; he had found a lawyer; he was only able to meet her on 19 March 2018; and she was in the process of briefing counsel and was yet to provide him with advice as to prospects. The affidavit does not explain the delay between seeking the lawyer on 19 March 2018 and filing the application for an extension of time on 9 April 2018. Also, no detail is provided as to steps taken between the date of the judgment in the Federal Circuit Court (23 February 2018) and seeing the lawyer (19 March 2018). For these reasons, I do not consider the explanation to be satisfactory.
I now consider the substantive merits of the proposed appeal. I note that the applicant has not filed an outline of submissions. He made brief oral submissions at the hearing. These were directed to the facts of his case rather than identifying error in the decision below.
Ground 1(a) in the draft notice of appeal is to the effect that the Tribunal erred by failing to consider and assess the applicant’s claims of being a young single Tamil male from Mullaitheevu in the Northern Province of Sri Lanka. This ground was not raised in the Federal Circuit Court. To the extent that this ground contends that the Tribunal failed to consider a claim that the applicant feared harm on the basis of membership of a social group comprising young single Tamil males from Mullaitheevu in the Northern Province of Sri Lanka, the applicant did not raise a claim to fear persecution on the basis of membership of such a social group in the application for review before the Tribunal. The applicant did make a claim based on his Tamil ethnicity. This was considered by the Tribunal at [62]-[66]. There does not appear to be any error in the way that the Tribunal considered this claim.
Ground 1(b) is that the Tribunal denied the applicant procedural fairness. No particulars have been provided. This issue was considered by the primary judge at [40]-[42] of the Reasons. No error is shown in the primary judge’s conclusion that she was not satisfied that the applicant was denied procedural fairness.
Ground 1(c) is that the Tribunal made an error of law in assessing the criterion in s 36(2)(aa) of the Migration Act, that is, the complementary protection criterion. This ground was not raised in the Federal Circuit Court. No particulars of the ground have been provided. The Tribunal considered the complementary protection criterion at [88]-[103]. There does not appear to be any jurisdictional error by the Tribunal.
Having regard to the above considerations, in my view the application for an extension of time should be refused. In particular, the proposed appeal has little merit.
Conclusion
For the above reasons, the application for an extension of time is refused. There is no apparent reason why costs should not follow the event. Accordingly, I will order that the applicant pay the Minister’s costs of the application, to be fixed by way of a lump sum.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. Associate:
Dated: 5 December 2018
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