BZAFQ v Minister for Immigration

[2016] FCCA 14

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAFQ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 14

Catchwords:
MIGRATION – Protection (Class XA) visa – application for extension of time within which to commence a judicial review application in that – one days delay in commencing application – delay unexplained – whether refugee review tribunal’s decision infected by jurisdictional error – no jurisdictional error – application for extension of time refused.

Legislation:

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

Applicant: BZAFQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 861 of 2013

Judgment of: Judge Jarrett

Hearing date: 21 October 2015

Date of Last Submission: 21 October 2015

Delivered at: Brisbane

Delivered on: 11 January 2016

REPRESENTATION

The Applicant appeared in person.

Solicitor for the First Respondent: Ms Tattersall

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance.

ORDERS

1. The name of the second respondent be amended to the “Administrative Appeals Tribunal (formerly known as the Refugee Review Tribunal)”.

2. The application filed on 26 September, 2013 seeking an extension of time pursuant to s.477(2)(b) of the Migration Act1958 (Cth) is dismissed.

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 861 of 2013

BZAFQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Applications for the judicial review of decisions of refugee review tribunals must be made within 35 days of the date of the decision sought to be reviewed: s.477(1) of the Migration Act1958 (Cth). The Court has power to extend the time if an application has been made in writing for that purpose and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order: s.477(2)(b) of the Act.

2. By this application, the applicant seeks an extension of the 35 day time limit so that he might commence an application for judicial review of a decision of a refugee review tribunal that was made on 21 August, 2013.  Any application for review by this Court needed to be made by 25 September, 2015.  Using the filing date of the present application as the nominal filing date for his application for review (26 September, 2013), his proposed application for review is one day out of time.

3. Ordinarily, the time limits imposed by the rules of court ought to be observed.  Extensions of time are not granted simply for the asking.  The Court must be persuaded that occasion for the favourable exercise of the discretion arises on the facts of the case before it.  The discretion is to be exercised judicially and not arbitrarily or capriciously.  That requires the identification of the factors relevant in any particular case and the weighing of those factors to derive the outcome.  Ordinarily, the following matters are seen as relevant to the exercise of the discretion reposed in the Court by s.477(2) of the Act:

   a)the length of the delay;

   b)the explanation for the delay;

   c)the presence of prejudice to the respondent; and

   d)the merits of the substantive application.

4. No other matters are present in the instant case that would add to that list.

5. Although the first respondent does not suggest that there is any prejudice to him if the requested extension is granted, he nonetheless opposes the application.  The second respondent enters a submitting appearance.

6. Despite a direction that permitted the applicant to file an amended application more fully particularising the proposed grounds of review and a direction requiring the filing and serving of written submissions in support of his application, the applicant has done neither.

7. The first respondent has filed written submissions to which I have had regard.

8. I have already set out the length of the delay.  It is one day.  It is insignificant.

9. The applicant has filed no evidence that provides an explanation for his delay.  No explanation was advanced in oral argument before me by the applicant to explain his delay. 

10. In his application he provides the following under the heading “Grounds of application for extension of time”:

    1.  I live in a remote area in Queensland. My English proficiency is poor. With the limited support in terms of bringing the case of Judicial Review was very difficult.  I managed to locate a Tamil refugee support group in Sydney to assist me to prepare this application package in time.

    2. I am aware that I am just in time. Please accept this application, if it reaches the Registry late due to logistical reasons.

11. What is contained within his “Grounds of application for extension of time” is insufficient to explain the delay in filing the application.  In my view the delay, insignificant as it is, remains unexplained. 

12. The merits of his proposed application are important.  To assess those merits it is necessary to understand the background to this application and the tribunal’s decision. 

13. The applicant is a citizen of Sri Lanka who arrived at Christmas Island in May, 2012.  On 10 August, 2012 the applicant made an application for a Protection (Class XA) visa.

14. The applicant claimed to be a Tamil fisherman from Udappu who feared harm from the Sri Lankan authorities because of his Tamil ethnicity, imputed political support for the LTTE and membership of various particular social groups including failed asylum seekers who had departed Sri Lanka illegally.

15. In particular, the applicant claimed that he was harassed by the Sri Lankan Navy which restricted his ability to earn a living from fishing.  He claimed that on one occasion he was stopped by a Sri Lankan Navy boat, threatened and assaulted by a naval officer because he did not have his fishing pass with him.  He was also required to show a fishing pass at navy checkpoints near his village where he lived. 

16. On 10 April, 2012 his employer and also a fisherman, disappeared and the applicant was informed by other fishermen that a “white van” had been seen near his employer’s house and that his employer was forced into the van and taken away.  The applicant subsequently reported his employer’s disappearance to the Sri Lankan Navy. 

17. The applicant claimed that he was told by his neighbours that a “white van” had visited his residence on several occasions to look for him. The applicant subsequently went into hiding in Jaffna before fleeing to Australia.

18. On 8 October, 2012 a delegate of the first respondent refused to grant the applicant the visa for which he had applied.

19. The applicant sought review of the delegate’s decision by a refugee review tribunal.  A tribunal was duly constituted but was unable to make a favourable decision for the applicant on the papers alone.  Accordingly, the applicant was invited to attend a hearing before the constituted tribunal so as to give evidence and present arguments in support of his application.

20. Prior to the hearing date, the applicant’s legal representative made a written submission to the tribunal in support of his review.  The applicant appeared before the tribunal on 19 February, 2013 to give evidence and present his arguments.  He had the assistance of a Tamil interpreter.  He was also represented by a migration agent.

21. On 21 August, 2013 the tribunal affirmed the delegate’s decision not to grant the visa.

22. The tribunal found the applicant was not a “witness of truth”.  It rejected his claims about being harassed by the Sri Lankan Navy whilst working as a fisherman.  It rejected his account of his employer being taken away in a white van finding it to be to “false”. To support the adverse view it took of his credibility, the tribunal relied upon inconsistencies between the applicant’s written evidence provided to the Department and his oral evidence to the tribunal about travelling to and working in Mullaitivu, where his employer lived, the reasons why this employer was taken away, and who told him of those reasons.  The tribunal considered the applicant’s explanation for the inconsistencies in his evidence and his representative’s submission that when he was in detention it was a high-pressure environment where interpreters were used and that could have led to errors and confusion over the actual content of his statement.  But the tribunal was not satisfied that these explained or excused the “significant discrepancies” between the applicant’s evidence in his written statement and evidence to the tribunal.

23. The tribunal also found that the applicant’s account of what happened after his employer went missing and his willingness to approach the Sri Lankan Navy to tell them that his employer had gone missing was “incongruous”.  It considered that someone in the applicant’s position would have “well understood” the risk to their own safety and questioned why he had remained working in Mullaitivu after his employer had allegedly gone missing.

24. In light of its adverse credibility findings, the tribunal found that there was “no credible evidence” that the Sri Lankan authorities held any adverse interest in the applicant.  Nor was there any “credible evidence” as to why he left Sri Lanka and did not wish to return. 

25. The tribunal considered whether the applicant fell within any of the recognised UNHCR risk profiles so as to assist it to determine if the applicant was at risk of serious harm should he be returned to Sri Lanka.  The tribunal found that Tamils who did not fall within any of the recognised UNHCR risk profiles faced only a “remote” risk of harm for reasons of their ethnicity and geographic origin.  It found further that the applicant did not fall within any of the UNHCR risk profiles.  The tribunal concluded that the applicant’s circumstances did not give rise to a real chance of harm to him should he be returned to Sri Lanka.

26. In light of the applicant’s own evidence that his relatives worked in factories and that he had received training to work on “outboard motors”, the tribunal also found that he could pursue employment other than fishing to reduce the risk of suffering serious harm.  Whilst the tribunal accepted, on the basis of the available country information, that there was a military presence in the north of Sri Lanka and discrimination against Tamils, it did not accept that the applicant faced a real chance of serious harm for those reasons.

27. The tribunal also accepted that the applicant would be interviewed at the airport, briefly detained on remand in poor conditions, and charged and fined because of his illegal departure.  However, it found, on the basis of the accepted country information, that the risk of him suffering serious harm as a failed asylum seeker who had departed Sri Lanka illegally was “remote”.  It found that these processes were applied in a non-discriminatory manner and there was “no substantiated evidence” that Tamils were mistreated during these processes.

28. The tribunal concluded that there was not a real chance of the applicant suffering serious harm in the reasonably foreseeable future in Sri Lanka, and that the applicant did not have a well-founded fear of persecution based on any convention grounds.

29. Having regard to its anterior factual findings, the tribunal also found that the applicant did not satisfy the complementary protection criterion.  It found the possibility of the applicant being briefly held on remand in “poor conditions” or receiving a fine did not give rise to a real risk of significant harm to the applicant upon his return to Sri Lanka.

30. The applicant’s proposed “grounds of application “ for review are as follows:

    l. That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.

    2. More details will be provided by the legal representative.

31. As I have already indicated, the applicant has delivered no amended application or any written submissions that would expand upon, or give any content to those grounds of review.  He was unable to explain that further in his oral submissions before me.

32. I accept the first respondent’s submission that in its unparticularised form, ground l appears to constitute no more than a plea for the Court to engage in impermissible merits review based on the applicant’s dissatisfaction with the tribunal’s findings.  Ground two, is not a proper ground of review at all.

33. I accept the first respondent’s submission that in assessing the applicant’s claims and evidence against the refugee and complementary protection criteria, the tribunal’s findings of fact, including in relation to his credibility and the credibility of his claims, were reasonably open to it on the available evidence before it.

34. There can be no suggestion that the tribunal did not to fully comply with its obligations as prescribed by Part 7 Division 4 of the Act. The tribunal invited the applicant to attend a hearing and it adequately notified the applicant of the issues arising in relation to the decision under review.  The applicant attended the hearing with the assistance of an interpreter and with a legal representative.  Having regard to the tribunal’s decision record, the tribunal demonstrably considered each of the applicant’s claims and provided findings that were reasonably open to it on the evidence before it.  

35. I am satisfied that the applicant’s proposed application seeks merits review rather than attempting to identify any jurisdictional error in the tribunal’s decision.  I have considered the tribunal’s reasons carefully, but cannot identify any error in the tribunal’s approach. 

36. In my view no jurisdictional error is apparent in the tribunal’s reasons.   Accordingly, the applicant’s proposed judicial review application has no prospects of success.

37. Notwithstanding the insignificant delay in commencing these proceedings, given my view that the applicant has no prospects of success on the application for review that he wishes to pursue, I am not satisfied that is necessary in the interests of the administration of justice to grant the requested extension. 

38. Accordingly, the application for an extension of time must be dismissed with costs.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 11 January, 2016.

Associate: 

Date: 11 January 2016