BVL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 165
•30 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVL18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2020] FCCA 165 |
| Catchwords: PRACTICE & PROCEDURE – Whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application for judicial review of decision of Administrative Appeals Tribunal satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 477 |
| Cases cited: Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 SZNYE v Minister for immigration and Citizenship [2010] FCA 500 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 |
| Applicant: | BVL18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 194 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 30 January 2020 |
| Date of Last Submission: | 30 January 2020 |
| Delivered at: | Sydney |
| Delivered on: | 30 January 2020 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Counsel for the Respondents: | Tim Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 194 of 2018
| BVL18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By application filed on 11 April 2018, the applicant sought an order that time be extended to him under s.477(2) of the Migration Act 1958 (Cth) (“the Act”) to seek judicial review of a decision of the Administrative Appeals Tribunal dated 28 February 2018 (“the Tribunal”).
Under s.477(1) of the Act, the applicant must file any application for judicial review within 35 days of the date of the migration decision. The applicant filed his application for judicial review on 11 April 2018, seven days after the expiration of the 35 day period as required by s.477(1) of the Act.
Legislative framework
Relevantly, pursuant to s.477(2) of the Act, the Court may extend the 35 day period if the Court considers that it is necessary in the interests of justice to extend time to the applicant to seek judicial review to the decision of the Tribunal.
In deciding whether to grant an application for an extension of time, the application should have such prospects of success as not to render the extension of time an exercise in futility (see Hunter Valley Developments Pty Limited v Cohen [1984] FCA 176 (“Hunter Valley”); (1984) 3 FCR 344; SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [16] per Katzmann J). In MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], Mortimer J stated relevant principles that were approved by the Full Court of the Federal Court of Australia in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [21] per Tracey, Perry and Charlesworth JJ, as follows:
“63. The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” (see SZTES [2015] FCA 719 at [48]; SZRIQ [2013] FCA 1284; 139 ALD 252 at [46]- [48]). Whichever description is chosen, the approach taken under s 477(2) should not be transformed into a de facto full hearing, especially where the outcome is not subject to any appeal as of right. The subject matter of s 477(2) is whether time for bringing a judicial review application, which is to be heard and determined in the ordinary course of the processes of the Federal Circuit Court, should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.”
The first respondent does not suggest that they would suffer any prejudice if time was extended. However, it is also well established that the mere absence of prejudice is not sufficient by itself to grant the applicant an extension of time (see Hunter Valley at [21] per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ).
If an application has no prospect of success, an extension of time – even for a short period – may be refused (see SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] per Murphy J; SZOZG v Minister for Immigration and Citizenship [2011] FCA 756 at [24] per Flick J; SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319 at [39] per Foster J).
Regard must also be had to the significant public interest in the finality of administrative decisions (see Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 (“Ex Parte Marks”) at [15]-[17] per McHugh J).
The proceeding before this Court
The applicant was unrepresented before this Court, although had the assistance of a Tamil interpreter.
On 5 July 2018, the applicant attended a directions hearing before a registrar of this Court. On that occasion, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language. The applicant was also given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing. The matter was otherwise listed for a callover on 7 November 2019 before me.
On 7 November 2019, the applicant and respondent were required to file and serve written submissions 14 and 7 days before the hearing respectively. Otherwise, the matter was set down for a hearing of the applicant’s application to extend time to him to seek judicial review of the decision of the Tribunal, pursuant to s.477 of the Act, on 30 January 2020 at 10:00am, before me.
In the applicant’s Further Amended Application for judicial review, filed 11 October 2019, the applicant identified the following grounds in support of his application for an extension of time:
“1. There is a reasonable explanation for the 7 days of delay set out in the affidavit of the applicant.
2. There is no prejudice to the respondents in extending time.
3. The impact on the applicant weighs in favour of granting an extension.
4. It is in the interests of justice to grant an extension.”
By affidavit affirmed 19 November 2018, the applicant provided an explanation for his delay, as follows:
“1. I am the applicant in these proceedings which seek judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) dated 28 February 2018.
2. I make this affidavit in support of my application for an extension of time to file the Application commencing these proceedings.
3. On the date of the Tribunal decision and until 5 May 2018 I was detained in Yongah Hill Immigration Detention Centre.
4. I received the Tribunal decision by hand from my Case Manager at Yongah Hill. He told me it had been posted.
5. I did not apply for an extension of time in my original Application as I believed the Application had been filed in time. I believed this because my Case Manager at Yongah Hill IDC told me at the time he gave me the decision that the 35 day limitation period to commence Court proceedings started from the date he gave me the decision.
6. I can't remember the exact date my Case Manager gave me the decision, but I am sure that my Application was filed within 35 days of the date he gave me the decision.
7. I received help from another detainee at Yongah Hill to draw up and file the Application. Had 1 known I had to file the Application within 35 days of the date of the Tribunal decision I would have done so with this person's help.”
I explained to the applicant that the Court has power to extend time to the applicant to seek judicial review of the Tribunal’s decision if the Court is satisfied that it is necessary in the interests of justice to do so. I also explained to the applicant that of particular importance would be the duration of the delay, the applicant’s explanation for the delay and the prospects of success of the substantive application for judicial review of the Tribunal’s decision.
The applicant was not cross-examined on the content of the affidavit. I note, however, that the applicant has not identified the name of the case manager whom he said gave him the decision. The applicant states that he could not remember the exact date that he was given the decision but was sure that his application was filed within 35 days of that date. The applicant then further states that had he known he had to file within 35 days, he would have done so with help from another detainee.
It is plainly the responsibility of the applicant to ensure that he makes himself aware of any time limit. However, I do have regard to the fact that he was in detention at the time.
In my view, the applicant's explanation is not satisfactory.
The applicant confirmed that, in relation to the substantive application for judicial review, he relied on the grounds contained in the Further Amended Application, filed on 10 October 2019, as follows:
“1. The Tribunal made a jurisdictional error in failing to make relevant considerations.
Particulars
a. i. Under complementary protection assessment at paragraph 150 of the decision record, the Tribunal cited the current DFAT report that noted monolingual Tamil speakers may have difficulty communicating with government authorities; and
ii. The Tribunal failed to make the relevant consideration that the applicant is a monolingual Tamil speaker.
b. i. At paragraph 93 the Tribunal failed to make the relevant consideration that the applicant’s step-father was laso his uncle. Even though his mother and stepfather were separated, his step father is still his uncle and the applicant may still be expected to assist his uncle in his political activities.
2. The Tribunal made a jurisdictional error at paragraph 137 in subsuming the data breach claim into the failed asylum seeker claim and in doing so failed to consider the data breach claim.
Particulars
a. the /tribunal made no consideration of the data disclosed not the significance of the disclosed information to the applicant.”
(Errors in original)
Each of the grounds was interpreted for the applicant and he was invited to say whatever he wished in support of those grounds.
In relation to the substantial application, I explained to the applicant that it was not for this Court to reconsider his original claims and that the only issue before this Court was whether or not the decision of the Tribunal was made according to law. I explained that the role of this Court is very different to that of the Tribunal and it is not for this Court to reconsider the applicant’s claims and to reach different findings and conclusions. I explained that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained that disagreements with findings and conclusions of the Tribunal rarely, by itself, established such a mistake.
Counsel for the first respondent's written submissions accurately summarise the background and the Tribunal’s decision, as follows:
“2. The applicant is a Sri Lankan Tamil citizen born on 5 April 1995.
3. The applicant arrived in Australia at Christmas Island as an unauthorised maritime arrival on 20 June 2012 with his stepbrother.
4. On 18 September 2012 the Minister exercised his power under s 46A(2) of the Act to allow the applicant to apply for a protection visa.
5. On 18 September 2012 the applicant applied for a protection visa.
6. The delegate of the Minister refused the applicant’s protection visa application on 19 February 2013.
7. The then Refugee Review Tribunal affirmed the delegate’s decision in relation to the protection visa on 26 June 2013.
8. On 13 April 2016 the Minister exercised his personal intervention powers to allow the applicant to lodge a new protection visa application.
9. The applicant made a SHEV application on 23 December 2016: CB 209-259.
10. The applicant participated in a SHEV interview on 14 March 2017.
11. On 19 April 2017 the delegate refused the applicant’s SHEV application: CB 322-341.
12. On 27 April 2017 the applicant applied for a review of the delegate’s decision with the Tribunal. The applicant attended a hearing at the Tribunal on 6 November 2017: CB 361-363. As already stated, the Tribunal affirmed the delegate’s decision on 28 February 2018: CB 369-413.
Tribunal decision
13. The Tribunal summarised the applicant’s claims as follows:
14. The applicant claims he faces a real chance of serious and significant harm from Sri Lankan authorities because he witnessed a sexual assault on his mother by the Sri Lankan Army in 2012. The applicant claimed to have attacked the person involved who then ran away: [20].
15. The applicant also claims that faces a real chance of serious and significant harm from Sri Lanka authorities because he is a Tamil who will be imputed with pro Liberation Tigers of Tamil Eelam (LTTE) and anti-government political opinions because of his ethnicity, he is a young Tamil mail from Mullaivitu, his stepfather’s links with Tamil political groups and his attendance at Martyr’s Day event in Sydney in 2014: [21].
16. The applicant claims that authorities will be aware that he was held in detention due to the data privacy breach and will conclude that he has applied for protection in Australia. He claims that he faces serious and significant harm as a failed asylum seeker and also as an illegal departee from Sri Lanka: [22].
17. The Tribunal made the following findings:
18. The applicant’s failure to mention the sexual assault claim during the initial application and review process (as part of his protection visa application), indicates that he did not leave Sri Lanka because he witnessed a sexual assault against his mother. The Tribunal formed the view that the applicant had changed his evidence at each stage to strengthen his claims for protection. The Tribunal gave little weight to the letter from the JP about the assault because it does not disclose any personal knowledge or observation by the author. Therefore the Tribunal did not accept the applicant’s claim that he left Sri Lanka because he witnessed a sexual assault on his mother and had threw stones at the perpetrator: [36] – [60].
19. If the Tribunal were to accept the applicant’s claim about the sexual assault, it did not accept that the Army, CID or other Sri Lankan authorities would pursue the applicant for his actions in shouting and throwing a stone at two soldiers at that time. The applicant’s mother continues to live in Mullaivitu and when this was put to the applicant the Army had visited his mother. There was inconsistent evidence from the applicant about what happened after the sexual assault. Therefore the Tribunal did not accept that the applicant’s house was under surveillance or that his mother was visited by the Army or that the applicant intervened in an attempted sexual assault: [61] – [63].
20. The Tribunal found that it was unlikely that he applicant’s stepfather would be linked to both the Tamil National Alliance and EDPD because country information indicated that the parties were opposed to each other. The Tribunal did not accept that the applicant will be pressured or forced to support or join any Tamil political parties because his mother and stepfather had separated and the applicant now has no contact with his stepbrothers. There is no plausible reason why the applicant would fell he had to support the TNA for family reasons. In any event the TNA is a mainstream party with significant involvement in national and provincial government: [86] – [95].
21. The Tribunal did not accept that the applicant attended a Martyrs Day commemoration in 2014 because the application did not have a clear recollection of the commemoration at the hearing and could not provide a detailed description of the event and he did not know where it was held: [96] – [98].
22. The Tribunal did not accept the applicant will be imputed with pro-LTTE or antigovernment opinions if he returns to Sri Lanka. Country information provides that simply being a Tamil male residing in or previously residing in Mullaivitu or northern strongholds will not on its own result in authorities imputing pro-LTTE connections. The Tribunal did not consider that the data privacy breach, the claim of being a failed asylum seeker and illegal returnee have raised the pro-LTEE profile of the applicant: [104] - [114].
23. Based on all the evidence and considering the claims singularly and on a cumulative basis, the Tribunal did not accept that if the applicant returns to Sri Lanka now or in the foreseeable future he faces a real chance of persecution or has a well-founded fear of persecution: [145]. The Tribunal did not accept that the applicant met the complementary protection criterion: [146] – [156].”
Ground 1
Ground 1 particular (a) asserts that the Tribunal failed to consider information in a Department of Foreign Affairs and Trade (“DFAT”) Report referred to by the Tribunal that noted monolingual Tamil speakers may have difficulty communicating with authorities.
That Ground refers to [150] of the Tribunal's decision record, as follows:
“150. The current DFAT report notes that all Sri Lankans irrespective of their background have a low risk of experiencing official discrimination on the basis of ethnicity including access to education, employment or housing. However, the report notes that monolingual Tamil speakers may have difficulty communicating with government authorities. Economic conditions in the north and east have improved since the end of the civil conflict, however, some industries have struggled, especially the agriculture sector. Further local communities have complained about military involvement in commercial enterprises and the control of agricultural land. President Sirisena has overseen the return of some land occupied by Sri Lankan Army but it continues to occupy some farming land in the north.”
Counsel for the first respondent submitted that there was nothing before the Court to suggest that the Tribunal was not aware that the applicant was other than a monolingual Tamil speaker. Counsel referred the Court to [11] and [17] of the Tribunal's decision record, as follows:
“11. The hearing was rescheduled for 6 November 2017 for hearing by video conference and the applicant appeared by video conference before the Tribunal on that date to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
…
17. The applicant has consistently claimed that he is a citizen of Sri Lanka, he spoke the Tamil language fluently and appeared to be familiar with the geography and culture of Sri Lanka.”
Further, and in any event, counsel for the first respondent submitted that difficulty in communicating with government authorities does not establish a well-founded fear of persecution in Sri Lanka and there is nothing before this Court to suggest otherwise.
In the circumstances, I accept counsel for the first respondent's submission that there is no basis to suggest that the Tribunal was unaware that the applicant was a monolingual Tamil speaker and that there is no basis to suggest that the Tribunal had not taken the applicant being a monolingual Tamil speaker into account in its decision.
Ground 1 particular (b) asserts that the Tribunal failed to consider that the applicant's stepfather was his uncle and that he may be expected to assist his uncle in his political activities.
The applicant made no relevant submissions in support of Ground 1 but did inform the Court that the person he spoke of as his uncle had been married to his mother's sister prior to the marriage to his mother; that his mother's sister had died; and, agreed that his stepfather, from whom his mother is now separated, is no longer his uncle although he refers to him as his uncle.
In any event, the Tribunal noted in its decision record that it put to the applicant that his mother and stepfather had separated, so his stepfather's political activities would not be a problem in the future and that support for the Tamil National Alliance (“TNA”) would not cause the applicant any problems if he returned to Sri Lanka because the TNA appears to have a legitimate role in government. The Tribunal found the applicant’s evidence concerning his stepfather’s political connections to be vague; noted the applicant’s admission that he did not have any personal knowledge of those connections; and, that he had been told about them by his stepbrother/cousin.
The Tribunal did not accept that the applicant would be pressured or forced to support or join any government political party and that, as he now has no contact with his stepbrothers, there is no plausible reason why he now feels he had to support the TNA for family reasons, noting the separation of the applicant's mother from the stepfather. The Tribunal found that, in any event, that the TNA is a mainstream Tamil party with a significant level of involvement in national and provincial government.
In the circumstances, it would appear that the Tribunal considered the applicant's claims in relation to any risk of harm to the applicant arising from any family pressure the applicant may feel to support or join any Tamil political party. The Tribunal further found that any support for the TNA for family reasons would not place the applicant at risk where the TNA is a mainstream political party with a mainstream involvement in government.
In the circumstances, Ground 1 is not made out.
Ground 2
In Ground 2, the applicant asserts that the Tribunal did not consider the risk to the applicant arising from disclosure of information about the applicant by reason of an earlier data breach by the Department. However, a fair reading of the Tribunal decision makes clear that the Tribunal did consider the significance for the applicant of the disclosure of information about the applicant as a result of the data breach. In relation to the issue, the Tribunal stated as follows:
“136. The 'data breach' relates to the Department mistakenly publishing information on its website revealing the personal details of people in detention for a period of approximately 14 days in February 2014. The Tribunal accepts that this occurred. The facts before the Full Federal Court in SZSSJ are that the document was accessed 123 times, and in its report to the department following the data breach, KMPG stated it was not possible to discount the possibility authorities in another country may have accessed the information in the data breach. The Tribunal therefore accepts that, whilst unlikely, it is possible that Sri Lankan authorities have accessed the information that the applicant was in detention. However, the Tribunal notes the information released by the Department did not disclose the nature of the applicant's claims.
137. In any event, as discussed with the applicant, if he returned to Sri Lanka he would be identified as a failed asylum-seeker because he would be returning involuntarily from Australia with a travel document. Therefore the Tribunal has considered the significance of the data privacy breach as part of the applicant's claim that he will be harmed, or his pro LTTE profile will be raised, because he is a failed asylum seeker.”
In those circumstances, it would appear that there is no jurisdictional error of the type complained of by the applicant in Ground 2.
Otherwise, a fair reading of the Tribunal's decision record makes clear that the Tribunal considered the applicant's claims in some detail and discussed those claims with the applicant at a hearing. The Tribunal noted various matters of concern that it put to the applicant and noted the applicant's responses.
Ultimately, the Tribunal did not accept the applicant's claim that he fled Sri Lanka in 2012 due to his intervention in an attempted sexual assault of his mother in 2012 and did not accept that the applicant feared that he would be harmed by authorities for that reason if he returned.
The Tribunal also considered in detail the applicant’s claims of imputed Liberation Tigers of Tamil Eelam (“LTTE”) opinions or links. During the course of exploring that claim with the applicant at the hearing, the applicant was invited to comment or respond to information. The Tribunal referred to that information as follows:
“82. When was asked why he left Sri Lanka and he said he could not stay in Mullaivitu because the LTTE were coming to the house and his mother told him to leave with his brother. He could not go to school as it was dangerous to stay as she did not know what the LTTE would do. When the LTTE came to catch him his mother put him in a bunker and the last time he went into a bunker was just before he left Sri Lanka. He said if he was caught he would be trained and have to go into battle for the LTTE.
83. This was relevant because it appeared that his mother and stepfather were still in a family relationship when he said they were separated. However, more significantly he claimed he left Sri Lanka because he feared the LTTE would take him away, train him and make him go into battle. His claims were quite different to the claims he has made since then and this might suggest that his current claims are not truthful.
84. The applicant elected to respond at the hearing. Firstly he stated his mother and stepfather separated after he came to Australia.
85. Secondly he was told that L TTE was still operating at the time of his departure in 2012. Also, he did not tell the true reasons he came to Australia because he did not wish to be disturbed for telling all this at that time. The Tribunal considers that the applicant meant "disturbed" in the sense of distressed not in the sense of bothered.
No complaint is made about the manner in which information was given to the applicant at the hearing and none is apparent on the face of the Tribunal’s decision record.
The Tribunal then considered the applicant’s stepfather’s links to the TNA or the Eelam People’s Democratic Party (“EPDP”). The Tribunal also considered the applicant's claim to attend Martyr's Day commemoration in 2014 with his stepbrother and ultimately rejected that claim, concluding he had not attended the event as claimed.
The Tribunal noted that it discussed with the applicant country information relating to the consequences of illegal departure and noted that the law applied to all citizens of Sri Lanka. The Tribunal further noted that compliance was not enforced in a discriminatory manner in circumstances where the applicant had left Sri Lanka illegally.
The Tribunal then considered in detail whether the applicant was affected by the data privacy breach and ultimately concluded he would not be at risk of harm for that reason.
The Tribunal also considered whether the applicant would be imputed with pro-LTTE opinions or links with the LTTE and did not accept that the applicant would be so imputed. The Tribunal noted the applicant's evidence that neither he nor any family members were members of the LTTE.
The Tribunal referred to country information on which it relied and ultimately concluded that the claim of data privacy breach, being a failed asylum seeker and illegal returnee, raised the pro-LTTE profile of the applicant and did not accept that the applicant was at risk of serious harm if he was returned to Sri Lanka for those reasons.
The Tribunal accepted that, based on country information to which it referred in detail, Tamils continue to face some low-level social discrimination. However, the Tribunal did not accept that the level of discrimination amounted to serious harm. The Tribunal ultimately concluded that the applicant did not meet either the criteria in s.36(2)(a) or s.36(2)(aa) of the Act and accordingly affirmed the decision under review.
Conclusion
Whilst I make no final finding as to whether or not the Tribunal's decision is affected by jurisdictional error, none is apparent on the face of the Tribunal's decision record and none has been identified by the applicant this morning.
In considering whether it is in the interests of justice that time be extended to the applicant, I have regard to the fact that the applicant's substantive application for judicial review of the Tribunal's decision would appear to have no prospects of success, or at least such prospects that an extension of time is likely to be an exercise in futility.
I accept that there is prejudice to the applicant in refusing to extend time to him to seek judicial review of the Tribunal’s decision. However, in balancing the interests of both parties and the overall interests of justice, I also have regard to the significant public interest in the finality of administrative decisions (see: Ex Parte Marks at [17] per McHugh J).
I find the applicant’s explanation for the delay to be unsatisfactory. However, even if I was to accept that explanation as satisfactory, the prospects of success of the applicant's application for judicial review are so little that I am not satisfied that it is necessary in the interests of justice to extend time to the applicant.
Accordingly, the applicant's application for an extension of time should be refused with costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 3 February 2020
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