BSK15 v Minister for Immigration
[2018] FCCA 1191
•24 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BSK15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1191 |
| Catchwords: MIGRATION – Protection (class XA) visa – Sri Lankan – Sinhalese ethnicity and catholic religion – unauthorised maritime arrival – Refugee Review Tribunal affirmed a decision of the minister’s delegate not to grant the applicant a protection (class XA) visa– applicant had 35 days to commence proceeding – extension of time application filed almost two years after tribunal decision – extension of time application dismissed. |
| Legislation: Migration Act 1958, ss.36(2)(a), 36(2)(aa), 425, 425A, 441A, 441C and r4.35(d) |
| Cases cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Jess v Scott (1986) 12 FCR 187 Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 MZAPB v Minister for Immigration and Border Protection (2015) 242 FCR 585 SZHFX v Minister for Immigration and Citizenship [2008] FCA 355 SZIQP v Minister for Immigration and Citizenship [2008] FCA 169 SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 SZQGO v Minister for Immigration and Citizenship [2012] FCA 177 SZRIQ v Federal Magistrates Court of Australia & Ors (2013) 139 ALD 252 SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 |
| Applicant: | BSK15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1946 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 5 March and 18 April 2018 |
| Date of Last Submission: | 18 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 24 April 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The extension of time application filed 25 August 2015 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $3,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1946 of 2015
| BSK15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
When this case was heard on 5 March 2018 the applicant informed me that by reason of his affected mental condition, he was unable to meaningfully participate in the hearing. On that date, Ms Kawalewska for the minister, recognised that the applicant should be given an opportunity to adduce such psychiatric or psychological evidence as he was able to assist in demonstrating his mental fabric as at the date of the tribunal hearing on 8 February 2013. I so ordered.
The applicant did not adduce evidence of any description to comply with my orders of 5 March 2018. As a consequence, at an evidentiary level this case stood on 18 April 2018 in precisely the same situation in which it stood on 5 March 2018. Yet on 18 April 2018 the applicant persisted in asserting that his mental fabric was such that I should not proceed to hear the case and that instead I should appoint a litigation guardian, as was canvassed in the decision of the Full Court of the Federal Court in L v Human Rights and Equal Opportunity Commission.[1] I pointed out to the applicant that he had been given ample opportunity to provide medical evidence and that he had not done so. I told him the hearing of the extension of time application would proceed. To better understand the nature of the extension of time application, it is necessary to say something about the background to this case.
[1] [2006] FCAFC 114
Background
On 2 October 2013 the Refugee Review Tribunal (“tribunal”) affirmed a decision of the minister’s delegate not to grant the applicant a protection (class XA) visa. The applicant had 35 days within which to commence this proceeding, making the relevant date early November 2013. Instead, the applicant filed this proceeding on 25 August 2015, almost two years after the date on which he should have commenced the proceeding. He needed an extension of time to do so.
Synopsis
Various formulations have been offered of the criteria to be met when an applicant seeks an order for the extension of time. Aside from prejudice, one of the more important matters is the merits of the case or the strength of the application for judicial review. For the reasons that follow I was not persuaded that the applicant’s case is meritorious. To the contrary, based on the existing grounds of review the case is likely to be dismissed. No purpose is served by granting an extension of time. I refuse this application for the reasons set out below, and I order the applicant to pay the minister’s costs.
Short factual narration
The applicant, a Sri Lankan male of Sinhalese ethnicity and catholic religion, arrived in Australia as an irregular maritime arrival on 18 May 2012 (item 28 on court book page 29). He provided a written statement of his claims dated 24 August 2012 that accompanied his application for a protection visa. The minister’s delegate refused the visa application on 19 December 2012. On 3 January 2013 the applicant applied to the tribunal, now the Administrative Appeals Tribunal (“AAT”) for a merits review of the delegate’s decision. The applicant was represented in making the application to the tribunal by Australian Migration Options (“AMO”). By letter dated 18 January 2013, the tribunal invited the applicant to give evidence and present argument on 8 February 2013. AMO responded stating that a representative of AMO would represent the applicant at the hearing on 8 February 2013. AMO provided a 17 page written submission to the tribunal.
On 2 October 2013 the tribunal decided to affirm the delegate’s decision to refuse to grant the applicant the protection visa he sought.
In essence, the tribunal determined that the applicant did not satisfy the criteria set out in s.36(2)(a) or under s.36(2)(aa) of the Migration Act. Relevantly paraphrased, the tribunal accepted –
a)that the applicant said he was 16 or 17 years old when his father went to Jaffna (paragraph 47);[2]
b)that the applicant could not be expected to have a clear recollection of the campaign at which he assisted his father in 2005 (paragraph 50); [3]
c)the applicant sustained an injury to his shoulder (paragraph 51);[4]
d)violence existed around election time;
e)the applicant will be charged with offences under Sri Lankan law concerning his illegal departure and that he will be questioned about his reasons for leaving Sri Lanka;
f)that some asylum seekers will be suspected by the Sri Lankan authorities as having links with the Liberation Tigers of Tamil Eelam (“LTTE”); and
g)the applicant will return to Sri Lanka as a failed asylum seeker.
[2] Court book, filed 8 March 2016, p.189
[3] Above n, p.190
[4] Above n, p.191
Of greater importance were the claims the tribunal did not accept. There were many of them of which the following is a distillation. The tribunal said it did not accept or it had difficulty accepting –
a)that the applicant was telling the truth about his reasons for leaving Sri Lanka (paragraph 44);[5]
[5] Above n, p189
b)that if the applicant’s father had been threatened by people following their release from prison the father would not have gone to the police (paragraph 44);[6]
[6] Above n
c)that the applicant was receiving threats from thugs after the applicant’s father went into hiding (paragraph 48);[7]
[7] Above n, p190
d)that persons who had threatened the applicant since 2010 would be coming to the applicant’s home for a period of years and threatening to kill him without their taking any action to make good their threats (paragraph 49);[8]
[8] Above n, p190
e)that the applicant was telling the truth about his and his father’s involvement in the United National Party (“UNP”) (paragraph 50);[9]
[9] Above n, p190
f)that the applicant was attacked by a member of the opposing party at a political meeting in January 2010 (paragraph 51);[10]
[10] Above n, p191
g)the applicant was involved in campaigning for the UNP as claimed (paragraph 51);[11]
[11] Above n, p191
h)the applicant’s father had to leave Sri Lanka by reason of threats from thugs, whose involvement in illegal drugs he had previously reported to police (paragraph 52);[12]
[12] Above n, p191
i)there was a real chance the applicant would be harassed, threatened, taken or killed or persecuted (paragraph 52);[13]
j)there was a real chance the applicant would spend longer than a fortnight in jail after he returned to Sri Lanka (paragraph 56);
k)the applicant or his father had been perceived as holding a political opinion in support of the LTTE, or that the applicant would be persecuted by reason of a political opinion imputed to him in support of the LTTE (paragraph 60);
l)there was a real chance the applicant will be persecuted by reason of his real or imputed political opinion or his membership of the social groups “people suspected or accused of associating with members, family members or supporters of the LTTE” or “a family member of a person being targeted by members of a criminal gang involved in illicit drug activities” (paragraph 61);
m)the applicant had a well-founded fear of being persecuted For one or more of the five convention reasons if he returnED to Sri Lanka now or in the reasonably foreseeable future;
n)the applicant’s father had to leave Iranawila because he was threatened by thugs whose involvement in illegal drug business had been reported to police (Paragraph 62);
o)there were substantial grounds for believing that as a necessary and foreseeable consequent of the applicant being removed from Australia to Sri Lanka there was a real risk that he will suffer significant harm from thugs working for members of the government or from the opposing party because of his association with his father or his or his father’s perceived involvement with or support of the UNP (paragraph 62);
p)a period to be spent by the applicant in jail amounted to “cruel or inhuman treatment” (paragraph 63);
q)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 the applicant would suffer significant harm because he would be returning to Sri Lanka as a failed asylum seeker or because of his illegal departure (paragraph 63);[14] and
r)there were substantial grounds for believing that, as a necessary and foreseeable consequent of the applicant being removed from Australia to Sri Lanka there was a real risk that he would be arbitrarily deprived of his life, that the death penalty would be carried out on him, that he would be subjected to torture, that he would be subjected to cruel or inhuman treatment or punishment, or that he would be subjected to degrading treatment or punishment (paragraph 64);[15]
[13] Above n, p191
[14] Above n, p194
[15] Above n, p195
The tribunal took the view that the applicant did not meet s.36(2)(a) or s.36(2(aa) of the Migration Act.
Accordingly, the tribunal affirmed the decision not to grant the protection visa.
Consideration
As mentioned earlier, the tribunal’s decision was made on 2 October 2013. The applicant had 35 days within which to commence a proceeding in this court in which he sought judicial review of the tribunal’s decision. That meant the applicant should have commenced this proceeding by a date in early November 2013. Instead, he commenced this proceeding on 25 August 2015, very significantly beyond the time limited by the Migration Act for judicial review in this court. As mentioned earlier, he needed an order extending the time within which to commence this proceeding.
Expressed most basically, the applicant was required to demonstrate that it was in the interests of the administration of justice that an order be made granting him an extension of time within which to commence this proceeding. Ordinarily, an applicant is required to provide an acceptable explanation for the delay. The genesis of that requirement is traceable to the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen.[16] A similar test was formulated by Foster J in SZRIQ v Federal Magistrates Court of Australia & Ors.[17] Here, an imprecise explanation was offered by the applicant, to the effect that he went through a hard period, he was depressed and he was unable to attend to his day-to-day activities. He said in his application he was obtaining medical certificates for those issues. None were put in evidence.
[16](1984) 3 FCR 344
[17] (2013) 236 FCR 442
It seemed to me that no adequate explanation for the delay in commencing this proceeding was given. It must not be forgotten that in Jess v Scot[18] the court held that an applicant needed to show “something very persuasive indeed” to justify the grant of an extension after a year. In this case well over a year and a half elapsed from the date of the tribunal’s decision before the applicant commenced this case.
[18] (1986) 12 FCR 187
Next, it was relevant for me to consider any prejudice to the minister if an order granting an extension of time was made. The minister did not point to any specific prejudice. However, in the minister’s written submissions it was pointed out that the absence of prejudice is not enough to grant an extension of time.
The merits of the substantive application are critically important. An applicant need only show grounds that are “arguable”, “reasonably arguable”, “sufficiently arguable” or that the applicant has “reasonable prospects” of success. That much was held in MZAPB v Minister for Immigration and Border Protection.[19] Grounds that are weak, as opposed to hopeless, will rarely be the subject of a refusal to grant an extension of time, as was held in SZTES v Minister for Immigration and Border Protection[20] and on the hearing of an application for extension of time, the applicant is not required to show that his or her ground of review will succeed, as was held in Seiler v Minister for Immigration, Local Government and Ethnic Affairs.[21] Further, an application for an extension of time should be resolved at an impressionistic level, and it should not be converted into a de facto Full Hearing, as was held in MZABP.[22]
[19] (2015) 242 FCR 585
[20] [2015] FCAFC 158
[21] (1994) 48 FCR 83
[22] MZAPB v Minister for Immigration and Border Protection (2015) 242 FCR 585.
Conversely, it is not necessary to grant an extension of time where the application for judicial review is devoid of merit. So much was held in Kalanje v Minister for Immigration and Multicultural Affairs,[23] SZIQP v Minister for Immigration and Citizenship,[24] SZHFX v Minister for Immigration and Citizenship,[25] Vu v Minister for Immigration and Citizenship,[26] SZOZG v Minister for Immigration and Citizenship[27] and SZQGO v Minister for Immigration and Citizenship.[28]
[23] [2006] FCA 1618
[24] [2008] FCA 169
[25] [2008] FCA 355
[26] (2008) 101 ALD 211
[27] [2011] FCA 756
[28] [2012] FCA 177
Having examined the merits of the applicant’s application for judicial review, it seemed to me that the applicant’s prospects of success were very poor.
Ground 1
The applicant advanced two subsets of this ground of review, neither of which had any detail. The applicant did not identify the facts that underpinned his contention that he was denied procedural fairness. Having carefully examined the material in this case it was apparent that the applicant was invited to attend a hearing before the tribunal to give evidence and present argument, the invitation being consistent with the provisions of s.425, 425A, 441A and 441C of the Migration Act, as well as with r.4.35(d) of the Migration Regulations.
The applicant appeared before the tribunal on 8 February 2013 assisted by a migration agent. On behalf of the applicant, post-hearing submissions were made.
Further, at the hearing the tribunal made it plain to the applicant that issues concerning implausible aspects of his case were being ventilated.
I detected no want of procedural fairness.
Ground 2
The applicant did not identify in what respect the tribunal allegedly applied the wrong legal test. He gave no particulars. When I asked the applicant to tell me in his own words what he said the tribunal did wrong, he was unable to articulate the reason. I did not detect that the applicant applied the wrong legal test. To the contrary, it seemed to me that the tribunal carefully considered the applicable provisions of convention protection as well as complementary protection. Having applied the correct legal test, the tribunal found that the applicant did not meet the relevant criteria. That was open. No jurisdictional error was thereby committed.
Conclusion
In my view, no adequate explanation for the delay in the commencement of this case was given. Further, the merits of the case were poor, and they were not reasonably arguable, arguable or sufficiently arguable.
In the circumstances, an extension of time should not be granted.
I dismiss the application to commence this proceeding and order the applicant to pay the minister’s costs fixed in the amount of $3,600.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 11 May 2018
CORRECTION NOTICE
Spelling of the word ‘Sinhalese’ was corrected in the first line of the catchwords and in paragraph 5 of the judgment.
The hearing date and date of last submission on page 2 of the cover sheet and orders were corrected.
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