BZAFR v Minister for Immigration

[2014] FCCA 1728

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAFR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1728

Catchwords:
MIGRATION – Application for extension of time within which to commence review application – protection visa application – no proper grounds of review made out.

Legislation:

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

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Applicant: BZAFR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 868 of 2013

Judgment of: Judge Jarrett

Hearing date: 18 July 2014

Date of Last Submission: 18 July 2014

Delivered at: Brisbane

Delivered on: 7 August 2014

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents: Ms Slack

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed on 30 September, 2013 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6,646.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 868 of 2013

BZAFR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks an extension of the time in which he might 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 made on 28 March, 2013 to refuse his application for a Protection (Class XA) visa. The application for review must have been made within 35 days of the decision sought to be reviewed: s.477(1) of the Migration Act 1958. Extensions of time are permitted by s.477(2) of the Act.

2. The first respondent opposes the application.  The second respondent enters a submitting appearance.

Background

1. The applicant was born on 10 October, 1987.  He is a citizen of Sri Lanka.

2. On 30 August, 2012 he applied for a Protection (Class XA) visa.  In the statement attached to his application, he claimed to fear harm from the Sri Lankan authorities and his former employer (a Sinhalese man) on two bases.  First, he claimed that his former employer told the Sri Lankan police that he was to blame for a number of criminal incidents of which he was innocent but in which he was implicated because he performed certain tasks to cover up those criminal incidents at his former employer’s request.  Second, he claimed to fear harm on the basis of:

   a)his Tamil ethnicity;

   b)an imputed political opinion of being opposed to the Sri Lankan government; and

   c)his act of seeking asylum in Australia.

3. On 28 March, 2013 a delegate of the first respondent refused to grant the protection visa.  On 2 April, 2013 the applicant applied to the tribunal for a review of the delegate’s decision.

4. On 24 May, 2013 the applicant appeared at a hearing conducted by the tribunal.  He attended with his representative.  The applicant gave evidence and presented arguments at the hearing with the assistance of a Tamil interpreter. 

5. On 18 July, 2013 the tribunal affirmed the delegate’s decision to refuse the applicant a protection visa. 

6. As to the first basis upon which the applicant claimed to fear harm, the applicant’s case was based upon two incidents.  The first occurred in 2010 when he claimed he took the blame for a motor vehicle accident that involved a police jeep.  His employer had been driving, but he had insisted that the applicant swap places with him and the applicant took the blame.  He was arrested and held overnight.

7. The tribunal had serious doubts about this claim.  Specifically, the tribunal found it implausible that his employer would make the applicant go to the pub, where the applicant’s employer had been drinking, for what appeared to be no reason.  The applicant could not drive and held no licence, so it was not suggested that he was to be a chauffeur for his boss.  The police did not charge anyone over the incident.  Moreover, the applicant continued to work for this employer despite being forced to take the blame for an offence he did not commit and which could have had serious consequences.  The tribunal found these claims implausible.  It was entitled to do so.

8. The second incident upon which the applicant relied involved his employer asking him to come to his house.  The applicant there discovered the body of a woman.  He was directed to clear away the body and he did so by burying the body in his employer’s backyard.  His boss told him to surrender himself to the police for the murder of the woman.

9. However, the tribunal did not believe the applicant’s claims about this incident.  Amongst other findings, the tribunal found that the information given by the applicant was ‘vague, contradictory and changed to fit deficiencies in his earlier claims”.  The tribunal found his description of his motivation for burying the body in the backyard, without any direction to do so, and finding the hole and tools by chance in the dark was implausible.  The tribunal also found that the applicant’s claim to asked for directions to the washing machine from his employer’s wife and then to have washed bloody sheets in the machine in the middle of the night with no concern from the employer’s wife who was at home at the time, to be ‘completely implausible”.

10. The tribunal did not accept that the CID or the applicant’s former employer visited the applicant’s house at any time for any reason. The tribunal found it ‘completely implausible’ and that his former employer, who wanted to protect his son, would inform the police that a crime had been committed when, according to the applicant, there was no evidence that a crime had been committed after he disposed of the evidence and cleaned the crime scene.

11. The tribunal concluded that the applicant was not a witness of truth and expressly rejected each of the applicant’s claims that he was in fear of his former employer and of the police.

12. Further, on the basis of the applicant’s own evidence, the tribunal found that he had never been involved or suspected to be involved with the Liberation Tigers of Tamil Eelam and the tribunal did not accept that the applicant has been or would be imputed to be a member of the LTTE or imputed with a pro-Tamil independence political opinion.  The tribunal also did not accept that factors such as being from Udappu increased the risk of the applicant being harmed.

13. On the basis of the independent country information accepted by the tribunal, the tribunal found that the applicant would not be harmed simply on the basis of being a Tamil.  The tribunal found that the applicant did not have those risk factors identified by the UNHCR and that there was no real chance or real risk that the applicant would be harmed simply for being a Tamil.

14. The tribunal accepted that the applicant departed Sri Lanka illegally but did not accept that being a Tamil or a Tamil from the North-West increased his risk of harm for having departed illegally.   The tribunal found that upon return to Sri Lanka, the applicant may experience short-term imprisonment on remand prior to applying for bail, or may be found guilty and fined as a result of his illegal departure from Sri Lanka, but that such action did not amount to persecution for a Convention reason because it was the result of enforcement of a generally applicable law that was not discriminatorily enforced.  The tribunal also found that any short-term imprisonment on remand prior to applying for bail or a fine did not amount to ‘significant harm’ under the complementary protection provisions.

15. Having considered the claims individually and cumulatively, the tribunal was not satisfied that the applicant had a well-founded fear of persecution for any Convention reason or that there was a real risk that he would face significant harm if he returned to Sri Lanka. 

16. I accept the first respondent’s contention that these finding were open to the tribunal on the evidence and other materials before it.

Extension of Time

1. Relevant to this matter are:

   a)the length of delay in making the current application;

   b)the explanation for the delay;

   c)the presence or absence of prejudice to the respondent; and

   d)the merits of the proposed appeal.

2. As to the first matter, the tribunal’s decision is dated 18 July, 2013 and the application for judicial review was filed on 30 September, 2013.  The application must be made within the 35 days of the date of the decision.  Thus, this application was required to be lodged by 22 August, 2013.  It was 33 days late.

3. The applicant’s explanation for the delay is that he lives in a remote area in Queensland and could not locate Tamil community and refugee support groups in time to prepare his application.

4. The first respondent relied upon Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348, where Wilcox J emphasised the importance of prescribed time periods, observing that:

   ... it is the prima facie rule that proceedings commenced outside that period will not be entertained ... it is a pre-condition to the exercise of discretion in his favour that the applicant for extension show ‘an acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time.

5. The fact that an applicant is unrepresented does not, of itself, justify an extension of time being granted. I accept the first respondent’s contention that the applicant has not provided an acceptable explanation for the delay in commencing these proceedings. I accept that the applicant’s failure to provide an adequate explanation for the delay of itself provides sufficient reason to refuse the extension of time sought. Although the period of the delay is not significant, the applicant’s explanation does not justify the Court granting the extension of time under s.477 of the Act.

6. However, even if that approach is incorrect, the applicant’s proposed review application has such little merit that I would refuse the current application on that basis also.  The propose review application is futile.

7. The applicant’s proposed grounds of the application are:

   1. 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.

8. I accept that the first ground does not contain any particulars to make it meaningful.  The tribunal’s findings were open to it on the evidence available.  No error is revealed by the tribunal’s reasons.  The applicant, by this ground seeks an impermissible review of the merits of the tribunal’s decision.

9. To the extent that the second “ground” represents a request to amend the grounds of review to provide a proper basis for a review of the tribunal’s decision, I note that by orders made on 18 November, 2013 the applicant was granted leave to file an amended application and supporting written submissions but no such documents have been filed.

Conclusion

1. In my view the application to extend time should be refused because:

   a)there is no acceptable explanation for the applicant’s failure to file the application in the relevant time; and

   b)his proposed review application is so devoid of merit that an extension of time is unwarranted.

2. The applicant’s application for an extension of time to lodge his application must be dismissed with costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 7 August 2014.

Associate: 

Date:         7 August 2014