FEDERAL COURT OF AUSTRALIA
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
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Details
- Case
- [2019] FCAFC 218
- Decision Date
CaseChat Overview and Summary
In the matter of BQQ15 v Minister for Home Affairs, the applicant sought an extension of time to appeal a decision of the Federal Circuit Court. The primary dispute revolved around the applicant's eligibility for a protection visa based on his claims of persecution in Sri Lanka. The Federal Circuit Court was tasked with determining whether the Tribunal's decision to refuse the protection visa was lawful and whether the applicant's application for an extension of time to appeal was justified.
The court had to decide if the proposed grounds of appeal were raised at the Tribunal level, if they had a reasonable prospect of success, and whether the delay in lodging the appeal was excessive or could be adequately explained. Additionally, the court examined whether the applicant's evidence was consistent and credible, considering the various statements he made over time.
The court found that the proposed grounds of appeal were not raised before the Tribunal, and even if they had been, they would not have succeeded. The court also determined that the delay in lodging the appeal was excessive and that the applicant's explanation for the delay was unsatisfactory. Consequently, the application for an extension of time was refused. The court further ordered that the applicant pay the Minister's costs of the application.
The court had to decide if the proposed grounds of appeal were raised at the Tribunal level, if they had a reasonable prospect of success, and whether the delay in lodging the appeal was excessive or could be adequately explained. Additionally, the court examined whether the applicant's evidence was consistent and credible, considering the various statements he made over time.
The court found that the proposed grounds of appeal were not raised before the Tribunal, and even if they had been, they would not have succeeded. The court also determined that the delay in lodging the appeal was excessive and that the applicant's explanation for the delay was unsatisfactory. Consequently, the application for an extension of time was refused. The court further ordered that the applicant pay the Minister's costs of the application.
Orders
Orders of the court
1. The applicant’s application for an extension of time to file a notice of appeal be refused.
2. The applicant pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons that follow, the applicant’s application for an extension of time to file a notice of appeal is refused.Background In making his application for a protection visa, the applicant has been required to articulate his claims on a number of occasions. In light of the amended notice of appeal on which the applicant seeks to rely, it is relevant to set out the various claims made by the applicant on each of those occasions, as they bear upon the Tribunal’s adverse credibility findings. In his entry interview on 23 August 2012, the applicant stated that:(a)He was born in Negombo in 1993.(b)His ethnicity is Tamil, his preferred language is Tamil but he also speaks Sinhalese.(c)He resided in the following locations at the following times: 14-19 Luis Pardesha, Negombo between 1993 and 2005; 337 Point 8 Adiarpara Katuri, Negombo between 2005 and 2010; Mannar (address not known) working as a fisherman between 2010 and 2012; and 14-19 Luis Pardesha, Negombo between June and July 2012 (after which the applicant departed Sri Lanka).(d)Between 1998 and 2008, the applicant was educated to year 10 at a Sinhalese school in Negombo.(e)Between 2010 and 2012, the applicant worked as a fisherman in a family fishing business owned by his paternal aunt in Mannar and, when he came home to Negombo on holidays, worked as a kitchen hand in Silvas restaurant and hotel. (f)His mother and father reside in Mannar and his father works as a fisherman. His younger brother resides with his parents in Mannar and his older brother resides in Negombo.(g)He left Sri Lanka because he was bullied at school. The school was a Sinhalese school and the applicant was the only Tamil student in the school. He was sent to a Sinhalese school because his father is Sinhalese. He has been targeted by Sinhalese boys as a Tamil and bullied and attacked. As a result, he left Negombo and went to Mannar.(h)He left Sri Lanka on 27 July 2012. In a written statement dated 4 December 2012 made in support of his application for a protection visa, the applicant made the following claims:(a)The applicant was born in Negombo in the Western Province of Sri Lanka. His father is Sinhalese and his mother is Tamil. He grew up in Negombo with his parents and two brothers.(b)He attended a Sinhalese school and speaks, reads and writes Sinhalese. He nevertheless identifies as being of the Catholic religion and Tamil ethnicity on the basis that Tamil is his primary language.(c)His problems began in 2010. At that time, his family lived in a thatched hut on the island of Batalan Gunduwa off the coast of Negombo where the family worked as fishermen. The family built a hut seasonally when the fishing was on. There were Sinhalese inhabitants on the island who could speak Tamil, one of whom asked the applicant’s father for a loan. His father refused and instead loaned money to a friend. Two or three days later, his family’s hut was burned down and his father suspected that this was done by the person who asked for the loan. His father complained to the police but no action was taken. His father suspected that the person(s) responsible for burning down the hut may have bribed the police.(d)Shortly after the hut burned down, the inhabitants who were responsible threatened his father that if he informed the authorities of the incident, he would be killed. The applicant recalled two separate occasions on which he and his father were fishing when Sinhalese locals approached them shouting abuse and threatening to ram their boats. When this was reported to the local navy guard, an officer told the applicant and his father that if they pursued their complaint with a higher authority, they would be abducted.(e)When the applicant and his father learned that other Tamils had encountered similar issues, a meeting of the local fishing co-op was called. A Sinhalese person said at the meeting that there was discrimination against Tamils because the Tamils supported the LTTE (which the applicant and his father denied). The president and secretary of the fishing co-op were both Sinhalese and they told the attendees not to complain to the police about discrimination against Tamils.(f)The applicant’s father confronted the people who were threatening them and they hit his father on the chest with an engine shaft. (g)Due to the applicant’s association with Tamils, he received threats to his life from young Sinhalese who lived on the island and who claimed they knew people in positions of power within the police force. Consequently, the applicant did not complain to the police.(h)Due to the threats, the applicant’s mother sent him to Negombo, which was far from the island. The applicant then travelled to Mannar to stay at his aunt’s house. While there, army officers inspected the applicant’s ID card and told him not to “go around this area”. The applicant feared that the officers may have been sent by people back on his home island of Batalan Gunduwa.(i)In February 2012, the applicant attended a protest against rising fuel prices in Chilaw, a town in the Puttalam District in the North Western Province of Sri Lanka. He claimed that he feared harm from the authorities after he accidentally hit a navy officer at the protest. This led the applicant to decide to leave Sri Lanka.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
At the Tribunal hearing, the applicant gave the following further evidence, which altered parts of his previous evidence and introduced a further claim of mistreatment by his father’s relatives: (a)He said that he finished school in 2009 or 2010. While he was at school, he worked at the Silva hotel in Negombo at weekends and, during school holidays, he went to the island of Batalan Gunduwa to fish. Following school, for about a year and a half, he worked with his father six months a year, from January to May or June, fishing on the island and for the other six months or so he worked at the Silva hotel in Negombo (Tribunal reasons [59]).(b)The hut that was burned down was a permanent hut (not built seasonally). The applicant stated that the hut was burned down in 2012, but later said 2011 (whereas his earlier statement indicated 2010) (Tribunal reasons [63]).(c)The applicant claimed that his problems included that his father’s side of the family were not supporting him because his father had married a Tamil. At some stage, his parents had lived separately because his father’s relatives had given the family trouble, although the applicant claimed that they were living together when he left Sri Lanka (Tribunal reasons [64] and [65]).(d)The applicant claimed that when he was working at the hotel in Negombo in 2012, his father’s relatives caused him problems and said things to him. At that time, he was staying with his paternal aunt’s son and daughter at a house that had belonged to his paternal grandmother. Nine or ten of his father’s siblings lived close by and his father’s relatives stayed at the house. He said that he could not return to Negombo because of trouble from his father’s relatives, and he could not return to the island of Batalan Gunduwa because of the trouble there (Tribunal reasons [66] – [68]).(e)The applicant claimed that, to save him from problems on the island, his mother was having an affair with the person who attacked the applicant and his father. The applicant claimed that this was the only way his mother could save his life. His father does not know of the affair. The applicant does not know what will happen if he returns to the island (Tribunal reasons [73]).Tribunal decision The Tribunal hearing was conducted on 3 July 2015 in Sydney and Melbourne with the use of videoconference facilities. The Tribunal member presided in Sydney; the applicant appeared in person in Melbourne; the applicant’s migration agent attended the hearing in Sydney. The applicant gave evidence and made submissions with the assistance of a Tamil interpreter over the telephone. In its reasons for decision, the Tribunal set out the applicable criteria for the grant of a protection visa in paragraphs 36(2)(a) (the refugee criteria) and 36(2)(aa) (complementary protection criteria) of the Act as those provisions stood at the relevant time. Relevantly for the present application, the key questions for decision were whether the Tribunal was satisfied that:(a)the applicant was outside Sri Lanka owing to a well-founded fear of being persecuted for reasons of race or membership of a particular social group; or(b)there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he will suffer significant harm.
Ratio Decidendi
Legal Principle Established
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