BZAFJ v Minister for Immigration

[2014] FCCA 2100

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAFJ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2100

Catchwords:

MIGRATION – Review of decision by Refugee Review Tribunal – application to extend time – no merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958, ss.477, 477(1), 477(2)

Cases cited:

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Applicant: BZAFJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 708 of 2013

Judgment of: Judge Jarrett

Hearing date: 15 August 2014

Date of Last Submission: 15 August 2014

Delivered at: Brisbane

Delivered on: 11 September 2014

REPRESENTATION

The Applicant appeared on his own behalf

Counsel for the First Respondent: Mr S McLeod

Solicitors for the First Respondent: Sparke Helmore Solicitors

The Second Respondent entered a submitting appearance

ORDERS

1. The application pursuant to s.477(2) of the Migration Act1958 (Cth) (Act) to extend the 35 day period prescribed by s.477(1) of the Act filed on 19 August, 2013 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 708 of 2013

BZAFJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By his application filed on 19 August, 2013 the applicant seeks an extension of time within which to bring an application for an injunction restraining the first respondent from relying upon a recommendation of an independent protection assessment reviewer.  The applicant prepared the application himself without, apparently, any legal assistance.

2. At the same time, he filed an affidavit to which is appended a decision record of the second respondent.  That decision record relates to an application by the applicant for the review by the second respondent of a decision of a delegate of the first respondent to refuse him a Protection (Class XA) visa.  It seems therefore that the application for relief filed by the applicant on 19 August, 2013 was misconceived, although to the extent that it might be seen as an application for review of the second respondent’s decision, the applicant indeed required an extension of time within which to commence such proceedings.

3. On 20 December, 2013 the applicant filed an amended application, by a legal firm described as “Success Lawyers and Barristers”.  The amended application was said to have been prepared by “Kumar of Counsel”.  In it, the applicant seeks an order that the second respondent’s decision made on 14 June, 2013 be quashed and a writ of mandamus be directed to “the tribunal or Minister” requiring them to determine the application according to law.  No application for the extension of time within which to bring the application for review is made in the amended application.

4. The applicant requires an extension of time to file the application for review pursuant to s.477 of the Migration Act1958. The decision was made on 13 June, 2013 and given to the applicant on 14 June, 2013. The 35 day time limit imposed by s.477(1) of the Act had clearly expired by the time the applicant filed his application on 19 August, 2013.

5. The first respondent seeks orders dismissing the application with costs.

6. Despite making directions for him to do so on 4 November, 2013 the applicant did not file any written submissions in support of his application.  The first respondent has filed written submissions for the Court’s assistance.

Background

1. The applicant is a Tamil from Sri Lanka.  He arrived in Australia as an irregular maritime arrival on 9 June, 2012.  He participated in an entry interview on 18 June, 2012.  The Minister exercised his discretion to permit the applicant to make an application for the grant of a Protection (Class XA) visa and on 6 August, 2012 the applicant applied for a Protection (Class XA) visa.

2. A delegate of the first respondent refused that application on 19 October, 2012.  He applied for a review of that decision by a refugee review tribunal.

3. As part of his initial visa application, the applicant provided a statutory declaration which detailed the following matters:

   a)In 2003, he commenced working for an organisation in Trincomalee called "Women and Child Care Organisation", which was said to be funded by "Action Aid", a non-governmental organisation in the United Kingdom. As part of his duties, the applicant worked with people affected by the conflict between the Liberation Tigers of Tamil Eelam and the Sri Lankan government. It is contended that many of the areas the applicant worked in were controlled by the LTTE and that the LTTE allowed the organisation to work in such areas because of the help that was being provided to the Tamil community.

   b)In 2006, two people came to the organisation's office in Trincomalee and asked for the applicant. At that time the applicant was in Colombo. The two people subsequently returned two weeks later and again requested to speak to the applicant. The applicant was later informed by his colleagues that they suspected the individuals were from the Criminal Investigation Department. The applicant was later informed by the President of the NGO that there was a suspicion that the applicant was giving money to the LTTE.

   c)The applicant resigned from the NGO and left Sri Lanka in May, 2006 to work in Singapore. In 2007, the NGO closed down. The applicant remained in Singapore until May, 2010 and then returned to Sri Lanka. He established a business in Trincomalee.

   d)In early April, 2012 a friend of the applicant was kidnapped. He was later returned safely. Around this time members of the Tamil Makkal Viduthalai Pulikal came to the applicant's house on three occasions. A letter was given to the applicant's family stating that the applicant had to report to the TMVP office in Paliyathru or he would face consequences.

   e)The applicant subsequently left Sri Lanka on 22 April, 2012 as he feared for his life and safety because the CID, paramilitary groups, the Army and Police continue to target people who they accuse or suspect of being members, supporters or associated with the LTTE.

4. By letter dated 3 April, 2013 the applicant's lawyers were advised that he could appear before the Tribunal on 16 May, 2013 to give evidence and present any argument relating to the decision under review. Arising from the hearing on 16 May, 2013, the applicant was invited, by letter dated 17 May, 2013 to make any submissions in respect to matters raised in that letter.  The applicant provided a lengthy submission on 1 June, 2013 in response to that invitation.

5. By letter dated 14 June, 2013 the applicant was advised that the Tribunal had decided to affirm the decision under review. The Tribunal's statement of decision and reasons were attached to the said letter.

The application for an extension of time

1. In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [43] to [47] Foster J explained the way in which the Court should approach an application for extension of time:

   45.    Section 477(2) requires an applicant for an extension of time to make his or her application in writing and to specify in that application why the applicant considers that it is necessary in the interests of the administration of justice to make the order (s 477(2)(a)). The section also requires that the Federal Magistrates Court be satisfied that it is necessary in the interests of the administration of justice to make the order for an extension of time before making such an order. The material to which the Court’s attention will ordinarily be directed for the purpose of the Court’s consideration of whether it is so satisfied will be the material relied upon by the applicant for an extension of time. The Federal Magistrates Court will not be confined to a consideration of the applicant’s material alone but that material will nonetheless constitute an important part of the material upon which the Federal Magistrates Court might reach the requisite level of satisfaction.

   46.    There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice ...”. The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice.

   47.    The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   (b) Whether there is any prejudice to the Minister;

   (c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

   48.    The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case. They are simply sensible guidelines developed by the courts which have utility in most cases.

2. In his original application, the applicant says:

   "I am not assisted by any lawyer at present and my English proficiency is poor, hence, I had difficulties with getting assistance to file this case ... Please accept my application, which may arrive late by a few days due to these logistical reasons."

3. Despite what is asserted by the applicant in his application, he has failed to file any affidavit material detailing the basis for the delay and why this Court should grant an extension of time.  There is no explanation for the delay.

4. No prejudice to the first respondent was asserted by the first respondent.

5. Moreover, one of the considerations to which the Court will have regard when determining whether it should grant an extension of time is the merits of the challenge to the decision under review.

The grounds of review

1. The applicant sets out three grounds of review in his amended application filed 20 December, 2013.

Ground 1

1. This ground is expressed in the following terms:

   1. The second respondent Tribunal committed jurisdictional error when it failed to consider the Applicant’s claim of particular social group/s (and further or in the alternative the integers of a social group).

   Particulars:

   1.1 The Applicant made claims to be considered as a particular social group of asylum seekers (CB 140) and the attributes/characteristics are particularly highlighted at (CB 140).

   1.2 The Second Respondent has not considered the Convention nexus claim of a particular social group at all;

   1.3 Failed to articulate if any of the claims had been considered.

2. The applicant, in a post hearing submission made by his lawyers and agents on 3 June, 2013 specified the particular social groups of which he claimed membership and by reason of which he claimed that he feared persecution.  Those particular social groups were defined as:

   Tamils in Sri Lanka; young Tamil men in the East or North of Sri Lanka; people suspected or accused of being members of, associating with or supporting the LTTE.

3. The tribunal was aware of the claims.  In the tribunal’s decision record, the tribunal member recorded the applicant’s claims as follows:

   3.  The issue in this case is whether the applicant worked for an NGO and whether he has been subsequently sought after by the authorities or the paramilitary.  In addition, the adviser has stated that he will be persecuted because is a Tamil, or has a political opinion, or an imputed political opinion, or is a young Tamil man in the East or North of Sri Lanka, or is a person suspected or accused of being a member of, associating with or supporting the LTTE. In addition, she has stated he would be persecuted as a failed asylum seeker.

4. The tribunal considered some of the applicant’s claims.  In particular, it said:

   8.  Whilst the Tribunal accepts that those having, or suspected of having, LTTE ties continue to be at risk of serious ill treatment from the authorities, the Army and other government-aligned groups in Sri Lanka although hostilities formally ended there in May 2009, the Tribunal is not satisfied on the evidence before it that the applicant has been identified as an LTTE member or supporter or of having links with the LTTE in 2012 or indeed at any time in the past, including 2006.

   9.  The Tribunal does not accept on the evidence that there is a real chance that the applicant will be persecuted by anyone including paramilitary groups because he is identified or perceived to be an LTTE member or of having links with the LTTE or of being a LTTE supporter.

5. As to the applicant’s claims that his fear of persecution was based upon his membership of the social groups described as Tamils in Sri Lanka or young Tamil men in the East or North of Sri Lanka the tribunal said:

   14.    The adviser has stated that there is country information that supports the applicant’s claims that Tamils are still persecuted on the basis of their ethnicity and/ or political opinion/imputed political opinion and suspected link/association with the LTTE. She has also quoted the 2012 UNHCR Eligibility Guidelines for 2012. Those guidelines state that the UNHCR considers that the following persons have risk profiles:

   persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE);

   certain opposition politicians and political activists;

   certain journalists and other media professionals;

   certain human rights activists;

   certain witnesses of human rights violations and victims of human rights violations seeking justice;

   women in certain circumstances;

   children in certain circumstances; and

   lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.

   15.    The Tribunal does not accept that the applicant falls within any of those groups. Taking those UNHCR profiles into account, and taking into account that nothing has happened to the applicant in the past, the Tribunal does not accept that the applicant is now at risk of being persecuted simply because of his ethnicity, or because he is a Tamil from the Eastern and Northern Province or because he is a Tamil young male from Trincomalee. Neither does the Tribunal accept that he will be persecuted for reasons of his race, religion or nationality, his real or imputed political opinion or his membership of any particular social group for the purposes of the Convention if he returns to his home in Trincomalee now or in the reasonably foreseeable future.

6. The applicant’s first ground of review is misconceived.  The tribunal clearly appreciated the claims made by the applicant and considered them.  This ground has no merit.

Ground 2

1. This ground is expressed in the following terms:

   2. The second respondent Tribunal committed jurisdictional error as it misdirected its inquiries to state authorities who would persecute the Applicant making findings not supported by evidence.

   Particulars:

   2.1 The Tribunal conflated the issue with the State agencies;

   2.2 There no evidence before the Tribunal that the paramilitaries had the up to date Arrivals and Departure information (and thus it would be immediately known to the paramilitaries that the Applicant was in the country (CB 178 - 179).

2. The difficulty with this ground of review is that the tribunal did not accept the applicant’s primary claims that he had been the subject of adverse attention from paramilitary groups in Sri Lanka.  The tribunal discounted his claims in paragraphs 4, 5, 6 and 7 of its reasons for decision.

3. This ground too, has no merit.

Ground 3

1. This ground is expressed in the following terms:

   3. The second respondent Tribunal committed jurisdictional error when it failed to consider Applicant’s claim of political opinion/imputed political opinion.

   Particulars:

   3.1 The Applicant’s claims that NGO activities would be considered as imputing opinion/stance sympathetic to LTTE or anti-government.

2. The tribunal had difficulty accepting the applicant’s claims that he worked for an NGO:

   4.  The applicant stated he worked as a livelihood and shelter officer in areas that were controlled by the LTTE for the Trincomalee based Women and Child Care Organisation from 2003 to 2006 however the Tribunal has some difficulty accepting this given that he stated he was allegedly told by an employee of the organisation that it closed in 2007 (the adviser stated in her post hearing submission that when he was in Singapore the Coordinator of the NGO told him it was going to close down and when he returned to Sri Lanka in 2009 it had closed down),  however evidence suggests it was still operating in Trincomalee in late August 2008. This suggests to the Tribunal that the applicant does not know when the organisation closed because he has not worked for it.

3. Notwithstanding that, the tribunal considered that if the applicant had indeed worked for an NGO,  the applicant would be imputed with an opinion sympathetic to the LTTE or anti-government:

   6.  When this was put to the applicant, he claimed it was the paramilitary that wanted him and not the government or the police. The Tribunal finds that the applicant was able to exit and reenter his country without difficulties, using a Sri Lankan passport in his name, on five occasions; in 2006 before the war and in 2009 just after the war finished and again in 2010 and 2012 because he was no interest to Sri Lankan authorities. In addition, even though the applicant stated he was wanted by the paramilitaries in April 2012 because of discussions about human rights atrocities in Geneva in 2012, he could provide no plausible explanation as to why a non-government group (as opposed to the government) would target him at a local level because of international discussions and why they would target him given that he had not worked in an NGO organisation since 2006.

   7.  The Tribunal is not satisfied that anyone came looking for the applicant or his friend in April 2012 or that his friend was kidnapped. The Tribunal is not satisfied that the TMPV has come to the applicant’s house and given a letter to the applicant’s family telling him to report.

4. This ground of review has no merit.

Conclusion

1. In my view, the application for an extension of time must be dismissed.  To make an order extending the time within which the applicant might make an application for review to this Court is not in the interests of the administration of justice.  There is no evidence upon which the Court might act to determine that the extension is appropriate.  In any event, the proposed grounds of review are not sufficiently arguable to justify the extension of time.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 11 September 2014.

Associate: 

Date:         11 September 2014