BZAES v Minster for Immigration
[2014] FCCA 814
•24 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZAES v MINSTER FOR IMMIGRATION & ANOR | [2014] FCCA 814 |
| Catchwords: MIGRATION – Application for extension of time within which to bring application for judicial review – proposed application for judicial review without reasonable prospects of success – application for extension of time refused. |
| Legislation: Federal Circuit Court Rules 2001, r.44.05(2)(c) |
| BZAER v Minister for Immigration & Border Protection & Anor [2014] FCCA 813 WZASQ v Minister for Immigration & Anor [2013] FCCA 1726 |
| Applicant: | BZAES |
| First Respondent: | MINSTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 572 of 2013 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 5 December 2013 |
| Date of Last Submission: | 5 December 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 24 April 2014 |
REPRESENTATION
| The applicant appearing in person |
| Solicitor for the Respondents: | Mr Alderton |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the title to the proceeding be amended by substituting the name “Minister for Immigration and Border Protection” for the name “Minister for Immigration, Multicultural Affairs and Citizenship” as the name of the First Respondent.
The application filed on 15 July, 2013 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,400.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 572 of 2013
| BZAES |
Applicant
And
| MINSTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant applied on 15 July 2013 for an extension of time to file an application for judicial review of a decision of a refugee review tribunal which affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Protection (Class XA) visa pursuant to s.65 of the Migration Act1958 (Cth).
If his application for an extension of time is successful, the applicant seeks judicial review of the Tribunal’s decision and consequential orders in the nature of constitutional writs quashing the decision of the Tribunal and compelling the Tribunal to make a new decision according to law.
The first respondent seeks orders dismissing the application with costs.
In BZAER v Minister for Immigration [2014] FCCA 813 I recorded that Judge Lucev explained in WZASQ v Minister for Immigration and Border Protection & Anor [2013] FCCA 1726:
Statutory framework
5. Section 477(1) of the Migration Act 1958 provides that an application to this Court for a remedy to be granted in exercise of the Court’s original jurisdiction under s.476 of the Migration Act 1958 in relation to a migration decision must be made to the Court within 35 days of the date of the migration decision.
6. Section 477(2) of the Migration Act 1958 provides that the Court may order that the 35 day period be extended as the Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
7. Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) provides that:
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
8. An application for an extension of time is incompetent unless the Court grants an extension of time pursuant to s.477(2) of the Migration Act 1958 . An extension of time will only be granted if:
(a) an application for an order for an extension of time has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make that order; and
(b) the Court considers it necessary, in the interests of the administration of justice, to make an order for an extension of time .
9. In relation to the second requirement, the non-exhaustive list of factors to be considered by the Court in determining whether an extension of time is “in the interests of the administration of justice” include:
a. the extent of the delay;
b. the reasons for it;
c. any prejudice to the respondent;
d. the impact on the applicant if time is not extended;
e. the interests of the public at large;
f. any exercise of the Court’s discretion, and
g. the merits of the proposed substantive application.
In the absence of an application meeting the requirements of s.477(2) of the Act an application for an extension of time under s.477(1) of the Act is incompetent: WZASQ (above) at [12].
12 July, 2013 was the last day for the filing of a review application by the applicant. It was filed on 15 July, 2013 and was therefore 3 days late. The delay is not inordinate by any means.
As the respondent points out, however, the applicant has not filed any affidavit which contains his evidence explaining the delay in bringing his application for judicial review or showing why it is necessary, in the interests of the administration of justice, for the Court to grant the requested extension of time.
Under the heading “Grounds of application for extension of time (specify why the applicant considers that it is necessary in the interests of the administration of justice to extend time)” his application merely says:
1. Decision Notification Received only on 17 June 2013
2. Lack of Interpreter Assistance in East Creek prevented seeking assistance
The applicant has not filed any evidence, by way of affidavit, or otherwise to explain the delay or why an extension should be granted as required by FCCR 44.05(2)(c).
On that basis alone, the application for an extension of time should be dismissed. His bare assertions do not reveal, in my view, any proper grounds for establishing that the extension of time is necessary in the interests of the administration of justice. Moreover, there is no evidence upon which the Court might conclude that it is in the interests of the administration of justice for the Court to grant the requested extension. Nonetheless, I do not dismiss the application for an extension of time on that ground. To the extent that I am able, I will consider the matters raised in argument in support of the application for the extension.
The applicant explains the delay by suggesting that he only received the relevant documents on 17 June, 2013. However, pursuant to s.477(1) of the Act , the time frame in which to lodge a valid judicial review application commences from the date of the migration decision (in this case 7 June, 2013), not the date that the applicant receives notification of the decision. The Tribunal’s decision was faxed to the applicant’s appointed representative on 7 June, 2013 and the applicant does not explain why he apparently did not receive notification until 17 June, 2013.
However, leaving aside the question of the applicant’s explanation for his delay, the first respondent submits that the discretion to extend time should not be exercised in his favour because the application has no reasonable prospects of success.
For the reasons that follow, I agree that the applicant’s application for review has no reasonable prospects of success and that his application for an extension of time ought to be refused for that reason.
The application filed on 15 July, 2013 contains one ground of review that asserts without any particulars that the Tribunal ‘‘failed to consider all of my claims”. I accept the first respondent’s argument that this bare assertion fails to reveal any case of jurisdictional error in the Tribunal’s procedure and decision. At the first court date for this application on 12 August, 2013 directions were made permitting the applicant to file and serve an amended application and any further evidence by 7 October, 2013 but he has not availed himself of that opportunity. Nor has he filed any written submissions in support of his case.
I accept that the Tribunal comprehensively considered and addressed all of the applicant’s claims against both the refugee and complementary protection criteria. It made findings of fact that aspects of the applicant’s claims and evidence lacked credibility and that the harm he might face did not constitute serious or significant harm. I accept that such findings were within the Tribunal’s jurisdiction to make as the sole arbiter of the facts and evidence and disclose no error.
Much of what follows is taken from the written submissions filed by the first respondent. The applicant took no issue with the accuracy of the matters stated by the first respondent and, having considered the reasons for decision from the Tribunal, I am satisfied that the first respondent’s submissions are an accurate recitation of the Tribunal’s reasons for decision.
The applicant is a citizen of Sri Lanka who entered Australia as an unauthorised maritime arrival on 5 June, 2012. After his arrival he participated in a detention interview on 23 June, 2012 and an entry interview on 23 July, 2012.
On 10 September, 2012 he lodged a Protection visa application after the Minister made a decision under s.46A(2) of the Act to permit him to do so. The applicant was represented by the same solicitor and migration agent in his visa application before the Department and in his subsequent review before the Tribunal.
In support of his application, the applicant provided identity documents, a statement of written claims, a police report and a certificate of residence. On 18 September, 2012 the applicant’s representative provided a written submission to the Department. I accept that despite the first respondent’s delegate recording the date of the submission as 2 October, 2012 and the Tribunal recording it as 18 August, 2012 the submission was plainly considered.
In addition, the applicant attended an interview with a delegate of the first respondent on 19 September, 2012 and attended two hearings before the Tribunal with his representative present on 18 February, 2013 and 21 May, 2013.
I accept that in its reasons for decision, the Tribunal accurately summarised the applicant’s claims for protection (at [4], [6]-[10] and [36]) and provided a comprehensive summary of the evidence that he gave at the two Tribunal hearings (at [12]-[32]).
The applicant claimed to fear harm from the Sri Lankan authorities for reasons of his Tamil ethnicity and his imputed political opinion (as a suspected member or supporter of the LTTE). He claimed that he faced general discrimination as a Tamil and a Hindu and was subject to regular checks by the Sri Lankan Army and forced to work in army camps. When he went to Colombo in 2005 to work in a steel company he was allegedly detained many times by the police because he was a Tamil and was ultimately fired by the company because of the difficulties associated with securing his release each time he was detained. The applicant returned to his village in 2008 and worked as a fisherman but claimed the Sri Lankan Army harassed him by taking his fish without payment and threatening him if he refused. He departed Sri Lanka in 2012 and feared that if he returned he would face harm because he was a Tamil, had departed the country illegally and was a failed asylum seeker. He also claimed that as a Tamil and a “Tamil from the North or East of Sri Lanka” he would be imputed with a political opinion as an LTTE supporter.
On 1 November, 2012 a delegate of the first respondent made a decision refusing to grant the applicant a Protection visa. The delegate did not accept that the applicant was a member of the particular social groups of Tamils from the North or East as his accepted evidence was that he was from the North Western Province. The delegate also found that his evidence about the claimed restrictions on his religious practice was “vague and inconsistent”, his evidence about the claimed discrimination he experienced as a Tamil was “inconsistent and not sufficiently detailed” to indicate that he was recounting personal experiences, and he had “significantly embellished” his claims that he was unable to subsist as the Sri Lankan Navy stole his fish and beat him. Nor did the delegate accept that the applicant faced harm for the other reasons that he claimed, given that the applicant had no past political profile or involvement with the LTTE and on the basis of the ICI that indicated positive changed country circumstances in Sri Lanka.
Further, the delegate found that the chance the applicant would face serious harm on his return to Sri Lanka was “remote”, particularly as he was able to obtain a genuine passport and the country information indicated that the treatment he would face on return was the consequence of a law of general application designed to achieve a legitimate national objective. Nor was the delegate satisfied that there were substantial grounds for believing there was a real risk that the applicant would face significant harm on his return to Sri Lanka.
The Tribunal expressly considered the applicant’s documentary evidence (at [5] and [27]) and the independent country information that was submitted on his behalf (at [33]). The Tribunal also applied the correct law for assessing the applicant’s claims against the refugee criterion (at [87]-[96]) and the complementary protection criterion (at [97]-[99]).
The Tribunal accepted aspects of the applicant’s claims including that during the war he was stopped at army checkpoints, sometimes questioned, beaten and detained and was forced by the army to perform work. It also accepted that he was harassed by the army who forcibly took his fish without payment and he was occasionally involved in incidents with Sinhalese people.
The Tribunal was not satisfied, however, that the authorities or paramilitaries would suspect the applicant of being an LTTE supporter or “anti-government” if he returned to Sri Lanka because he and his family had never supported or been involved with the LTTE and his region did not have an active LTTE presence. Instead, it was controlled by the army.
Nor was the Tribunal satisfied that any of the accepted harm that the applicant experienced in the past was perpetrated because of his suspected LTTE involvement or support. It did accept, however, that some of the harm was inflicted because he was a Tamil. In particular, it found that many Tamil men were stopped, detained and questioned during the war but, consistent with the applicant’s own evidence, this had not occurred since 2008.
On the basis of the UNHCR Eligibility Guidelines 2012 and its finding that the applicant lacked any political profile, the Tribunal also did not accept that the applicant would be suspected of being an LTTE supporter or anti-government merely because he was Tamil or because he was a failed asylum seeker who had departed illegally. The Tribunal gave particular weight to the fact that the applicant had not been of adverse interest to the authorities since 2008.
The Tribunal noted that the country reports available to it did not indicate that all residents of Chilaw or Udappu were regarded as having an anti-government or pro-LTTE opinion because they originated from that area. It also rejected the applicant’s claim to have been suspected of working for the LTTE in the past and relied on the fact that he had not been of interest to the authorities since 2008 to find that he did not face a real chance of serious harm for any actual or imputed political opinion based on his place of origin or residence in Sri Lanka.
For similar reasons, the Tribunal also did not accept that he faced a real chance of serious harm as a Tamil male from a predominantly Tamil area. In particular, the Tribunal relied on country information that indicated the LTTE was not strong in the applicant’s region and his evidence was there was no LTTE presence in his village. The Tribunal was also not satisfied that the applicant faced a real chance of persecution because of his Tamil ethnicity and found on the basis of accepted country information before it, that the security situation in Sri Lanka had stabilised and Tamils were no longer presumed to require protection.
On the basis of the country information before it, the Tribunal accepted that Tamils might be subject to discrimination and fishing restrictions. It also accepted that some of the past incidents of harm and discrimination that the applicant claimed to have experienced because he was Tamil had likely occurred but did not accept that he faced a real chance of serious harm in the future for reasons of his ethnicity. It relied on the UNHCR Eligibility Guidelines 2012 that indicated Tamils were not included amongst the risk profiles and whilst it accepted there might be “random instances of violence against Tamils” it found there was not a real chance that Tamils would face serious harm on the basis of ethnicity.
The Tribunal relied on country information demonstrating the co-operative spirit between Udappu fishermen and the authorities and found this undermined a finding that Tamils faced a real chance of being forced to work for the army and prevented from earning a livelihood. Whilst the Tribunal accepted there were reports of discrimination against Tamils and that government promises to provide public services had not been fulfilled, the Tribunal was not satisfied that constituted “serious harm” for the purposes of s.91R(l)(b)(2) of the Act because the discrimination was “not intensive, repetitive and prolonged”. I accept the first respondent’s submission that the question of what constitutes “serious harm” within the meaning of s.91R is a question of fact and degree for the Tribunal as sole arbiter of the facts.
The Tribunal was also not satisfied that the applicant faced a real chance of persecution because of his Hindu religion. It relied on country information before it that indicated religious freedom was protected by Sri Lankan laws and respected by the government and that there was an absence of reports by human rights organisations of religious persecution. It was therefore not satisfied of the applicant’s claims that he would be prevented from wearing traditional clothes or entering temples, or that he would get into fights with Sinhalese people about going to temples.
The Tribunal accepted that on his return to Sri Lanka the applicant might be interviewed, arrested, imprisoned on remand or fined but found that there was only a remote or insubstantial chance that he would face persecution on this basis because he did not have any adverse profile and the laws in relation to illegal departure were of general application and not applied or enforced in a discriminatory manner.
The Tribunal was not satisfied that the discrimination the applicant experienced in the past for reasons of his religion and ethnicity amounted to significant harm or that he otherwise satisfied the complementary protection criterion. The Tribunal also relied on country information before it about the treatment of returnees to Sri Lanka and was not satisfied that the expected treatment he might experience on return to Sri Lanka constituted significant harm.
As the Tribunal had found that the applicant would not be regarded as an LTTE member or supporter, lacked any political profile and did not fall into any of the risk categories identified by the UNHCR, it was not satisfied there were substantial grounds for believing that he faced a real risk of significant harm should he be returned to Sri Lanka.
Having considered his claims separately and cumulatively, the Tribunal found that the applicant did not have a well-founded fear of persecution or that he satisfied the complementary protection criterion.
I accept the first respondent’s submissions that the Tribunal’s findings to support these conclusions were open to it on the evidence before it. The Court cannot review the merits of the Tribunal’s decision.
Further, I accept the first respondent’s submission that the Tribunal’s procedure does not reveal any case of jurisdictional error. The Tribunal complied with its obligations under s.425 of the Act by validly inviting the applicant to two hearings on 18 February and 21 May, 2013. The applicant attended both hearings with a representative and gave evidence in support of his claims. The Tribunal member discussed with the applicant during the hearings the concerns that it had with his claims and evidence.
Further, the information that the Tribunal relied upon in reaching its decision comprised either country information or information that the applicant had himself provided. I accept that such information was excluded from the operation of s.424A(1) by the exceptions in s.424A(3). Accordingly, there was no obligation on the Tribunal to put this information to the applicant for comment in accordance with s.424A(1) and no breach of that section is otherwise apparent.
Conclusion
In my view, the applicant is unlikely to be able to establish that the decision of the Tribunal was affected by jurisdictional error. He has no reasonable prospect of successfully prosecuting a judicial review application on the grounds identified by him.
The applicant, of course, might amend his grounds of review or pursue altogether different grounds if an extension of time were granted, but having considered the Tribunal’s reasons, I am of the view that no error is revealed in the Tribunal’s processes or reasoning.
The extension of time should not be granted. The application filed on 15 July 2013 should be dismissed with costs in the sum claimed by the first respondent.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 24 April 2014.
Associate:
Date: 24 April 2014
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