BZAFS v Minister for Immigration

[2016] FCCA 1233

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAFS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1233

Catchwords:
MIGRATION – Application for extension of time to seek judicial review of RRT decision – application 87 days late – explanation for delay not satisfactory – consideration of merits of substantive application – applicant’s submissions significantly misstating Tribunal’s conclusions – applicant’s case not sufficiently meritorious to justify extension of time.

Legislation:

Migration Act 1958, ss.36(2)(aa), 477

Applicant: BZAFS

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 972 of 2013

Judgment of: Judge Demack

Hearing date: 30 May 2014

Date of Last Submission: 30 May 2014

Delivered at: Rockhampton

Delivered on: 20 May 2016

REPRESENTATION

Counsel for the Applicant: Mr Barataraj

Counsel for the First Respondent: Ms Stoker

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the applicant’s application for an extension of time pursuant to s.477 of the Migration Act 1958 be dismissed.

2. That the applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 972 of 2013

BZAFS

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Preliminary

1. This matter has been the subject, very regrettably, of substantial delay.  Owing to pressure of work, this judgment will not be delivered until approximately two years after judgment was reserved. I have given consideration in these circumstances as to whether I should issue a judgment. Despite the delay, however, the fact is that this is not a case that involves any assessment of witnesses or credit. Further, I have the assistance of the transcript of the hearing to assist me. In these circumstances, I have determined that I can and should properly give judgment.

Introductory

1. The applicant seeks an extension of time, in which to bring his application, pursuant to s.477 of the Migration Act 1958 (“the Act”).  It is common cause that his application was filed 87 days out of time.  The applicant says that he has adequately explained the delay in the application and asserts merit in the grounds of the substantive application. The first respondent disputes the adequacy of the explanation for the delay and further submits that the application is insufficiently meritorious for it to be appropriate for the court to extend time.

2. For the reasons that follow, I think that the first respondent’s submissions are correct and the application will be dismissed with costs.

3. It should be noted that this matter was heard together with the matter of BZAFT, who is the applicant’s brother. This joint hearing was at the express requests of the applicants. Nonetheless, although the underlying facts asserted by the two applicants are in large part identical, it will be necessary to give separate judgments since there is one aspect of BZAFT which is wholly discrete (namely BZAFT’s mental health and the difficulties associated therewith).

Uncontroversial background

1. What follows is taken from the materials in the court book (“CB”) and/or the parties’ written submissions and is not, in my view, controversial. The applicant is a Sri Lankan national of Tamil ethnicity.  He was born in Colombo on 20 June 1975 and married in April 2007.  He has a son born in 2008.

2. The kernel of his claims is that on 20 January 2008, the police, CID and army came and took him and his brother, BZAFT, into custody and kept him in such detention until around 6 February 2012.

3. Following this release, he and his brother were taken for one month by the army and released in March 2012. He left Sri Lanka with his brother on 1 June 2012, allegedly with the help of his cousin and a smuggler. The applicant’s brother, BZAFT, has been diagnosed with schizophrenia and as a result, the applicant has to an extent taken a protective role in his regard. They arrived on Christmas Island on 20 June 2012, as undocumented irregular arrivals.

4. On 11 September 2012, the applicant applied for a protection visa and on 11 February 2013, a delegate of the first respondent refused the application. Although the delegate did not grant the application, I note (CB 163-164) the delegate largely accepted the applicant’s account of what had occurred to him.

5. The applicant applied to the Tribunal for review of the delegate’s decision and a hearing was conducted on 11 April 2013, at which the applicant was represented by a registered migration agent.  As earlier indicated, at the applicant and his brother’s request, the hearing was conducted jointly.

6. On 24 April 2013, the Tribunal sent the applicant’s representative an invitation to comment on particular issues, to which the representative responded on 9 May 2013.  The applicant also provided a statutory declaration in support of his application for review on 10 May 2013.  On 28 June 2013, the Tribunal delivered its decision, affirming the decision not to grant the visa to the applicant.

7. The application to this court is conceded to have been filed some 87 days late.  The parties differ as to whether this delay has been satisfactorily explained.

8. In his originating application, the applicant indicated that he needed an extension of time in which to bring his application and asserted as grounds therefore:

   “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.  I hope to send this before the 35-day deadline.  Please accept my application, which may arrive late by a few days due to these logistical reasons.”

9. The applicant has not himself said anything further about this matter since.  In the applicant’s oral arguments document, marked as exhibit 1, it is relevantly asserted at paragraph 1 that:

   “1)    Re the Application for the extension of the application:

   a)The Applicant accepts that he was late in the application for review;

   b)The Applicant has no knowledge of English, the procedures of the legal system and has to depend on others to help him.  This is exacerbated in that the Applicant has severe mental problems and also depended upon his brother to assist him and advise him.  His brother also is not in a better state.  He was able to make the Application only after finding a suitable person to assist and this did take time.  The Applicant seeks this Court to take note of the disability and waive the condition.”

10. That extract is not entirely easy to construe.  It is under intitulation referring to BZAFS but the paragraph 1(b) seems to me to be about BZAFT, who has schizophrenia, albeit that his brother (I presume BZAFS) “also is not in a better state”.

11. The applicant’s capacity to understand English is not clearly revealed.  The affidavit filed contemporaneously with the originating application on 28 October 2013 was sworn through an interpreter, even though the text of the affidavit is very short.  His subsequent affidavit filed 13 January 2014 was not apparently translated to him even though the terms of that affidavit are more complex than the first one.  The language set out in the originating application in support of the grant of application for extension of time suggests they were drawn by somebody with a reasonable command of English and certainly beyond that one would expect from somebody who required an affidavit to be interpreted to him.

12. In the end, it is probable there was a measure of delay caused by the necessity for the applicant to obtain and act upon advice.  Nonetheless, the better view, in my opinion, is that the 87 day delay in both this and the matter of BZAFT is not satisfactorily explained.  The applicant clearly knew of the 35 day time limit at the time he filed his application and as the first respondent’s written submissions correctly point out, the 87 day delay is significant.  This is so notwithstanding that there is no suggestion that it has caused any active prejudice to the first respondent.

13. Accordingly, to the extent that it is of relevance, I regard the explanation for the delay as unsatisfactory.  It is well established that prima facie, the time limit set by the legislation should be adhered to and this is clearly a relevant matter. 

The merits of the substantive application

1. Scarcely surprisingly, the parties also differ as to the likely prospects of success of the substantive application.  Although I have already expressed my views about the lateness of the application, it is the merits or otherwise of the claim which are, in the particular circumstances of this application, far more important.

2. This requires consideration of what the applicant has said from time to time and what the Tribunal made of what the applicant had to say.

3. The applicant’s IMA entry interview form is at CB258-275.  The reasons he gave for leaving Sri Lanka are at CB269-270.  He asserted that on 20 January 2008, the army came and took him and his brother away because, “my cousin came to visit us and took photos of buildings and when he returned to Vavuniya he was caught by the army who saw this and when questioned, he provided them with our address.”

4. The applicant asserted being assaulted by the authorities, that he was placed in prison for four years and was let out in February 2012.  When he was released, there were four Tamil boys that lived near him and they were abducted by a white van and nobody has heard from them again.  On the same day that the boys were taken, the applicant and his brother were taken for one month by the army and were released in March.  On this occasion they were asked if they had any association with the LTTE.  These were the matters that caused the applicant to leave Sri Lanka.

5. The applicant next provided a statutory declaration in support of his application for the protection visa which is at CB181-183.  It is, in essence, the same as the IMA interview although it gives slightly more detail.  Once again it was asserted that the applicant and his brother were arrested by the Police CID on 20 January 2008.  This followed a visit of the mother’s uncle’s grandson, Raja, from Jaffna in January 2008 who took photographs of important places in Colombo.  He was caught on his way back to Jaffna in Vavuniya. The statutory declaration adds that he has not been heard of since he was arrested and he has not been released.

6. Having repeated the assertions of assault by the Police CID and the detention until around 3 February 2012 the applicant repeated the incident of the four Tamil boys being taken off in a white van and he and his brother’s arrest for one month by the army and release in March. 

7. As earlier indicated the delegate who reviewed the application was in the ultimate prepared to accept the applicant’s factual claims. She noted however (CB161) various discrepancies between what was in the earlier written statement and entry interview with what was actually said to the delegate by the applicant. Ultimately, the delegate did not consider that the applicant’s circumstances were such that he was a person to whom Australia owed Refugee Convention obligations, nor did he meet the complementary protection provisions in s.36(2)(aa) of the Migration Act 1958.

8. The applicant applied for a review to the Tribunal and the written submissions forwarded by his migration agent are at CB92-100.  Understandably, given the nature of the delegate’s decision, the written submissions concentrated more on the circumstances of Tamils generally in Sri Lanka and added nothing of any factual content to the accounts already given by the applicant.  Following the hearing at the Tribunal on 11 April 2003, the Tribunal wrote to the applicant on 24 April 2003 providing an invitation to comment on or respond to information (CB76-81).  The Tribunal noted that in his written statement 8 September 2012 he had stated that his cousin, Raja, had come from Jaffna to stay on 5 January 2008 and that he and his brother had been arrested on 20 January 2008. At the interview with the delegate the applicant gave evidence that Rajah came to his home for one week on 5 May 2008 and that the subsequent arrest of the applicant and his brother was on 12 May 2008.

9. The Tribunal also noted a discrepancy in relation to the date given for release from detention.  It was earlier put at 6 February 2012 but at the interview with the delegate the applicant said the release was on 30 December 2011.  The Tribunal noted that at the Tribunal hearing, the applicant gave evidence that it was on 30 December 2011 that he was released. The February date was noted not only to be inconsistent with the December date but was at odds with the issue of a new passport to the applicant on 6 January 2012.  The Tribunal set out in some detail further discrepancies in the accounts given by the applicant from time to time relating to medical treatment of his brother, visits by his wife’s family while he was in jail, other discrepancies in the evidence of the applicant’s brother and as to the incidents that took place after the applicant and his brother were initially released from jail. 

10. The applicant’s statutory declaration responding to the Tribunal’s request for further information is at CB 55-56. He provided further information as to his imprisonment, but in the main his explanation for  the inconsistencies that had given rise to the Tribunal’s inquiries are either that he made a mistake (for example, the dates that he and his brother were detained), that he did not remember (being taken away in February 2012) or that it was not really part of his case (his work as a three-wheeler driver).  The statutory declaration is repeated at CB 59-60.

The Tribunal’s Decision

1. The Tribunal paraphrased the application for review and set out the relevant law at CB9-11.  No objection has been taken to those matters and, in my view, they are unremarkable.  The Tribunal conducted its hearing on 11 April 2013 as a joint hearing with his brother, the brother having also made an application for a protection visa.

2. The Tribunal summarised claims and evidence at CB11-13.  Page 12 in the Court Book (and a number of other pages) are incomplete but I was assured by counsel for the first respondent at the hearing that the copy of the Tribunal’s decision annexed to the applicant’s first affidavit is a true and correct one, and I have worked from that document.  The Tribunal in my view correctly paraphrased the applicant’s claims as being essentially the incarceration from 2008 to 2012 following the cousin Raja taking photographs, the abduction of four Tamil boys in white vans when the applicant and his brother were released in 2012 and the applicant and his brother being retaken into custody for a month immediately thereafter and released in March 2012.  The Tribunal noted the version of the events given at the entry interview (paragraph 29) and with the delegate on 11 September 2012 (paragraphs 30-57).

3. The Tribunal paraphrased the written submissions made by the applicant’s representative dated 5 April 2013 (paragraphs 58-62) in a fashion that seems to me a fair one.  The Tribunal then paraphrased the Tribunal hearing on 11 April 2013.  There is no suggestion that the matters the Tribunal recorded are inaccurate in any material way. 

4. Noteworthily, the Tribunal was told by the applicant that he and his brother were taken into detention on 12 May 2008 and released on 30 December 2011 (paragraph 78).  The Tribunal put these inconsistencies to the applicant (see, for example, paragraphs 88-90) and it is clear from the extensive recitation in the Tribunal’s decision that the Tribunal had extensive discussion with the applicant about various aspects of the story, which were subsequently communicated to him in the invitation to comment letter.  The applicant’s agent responded by letter dated 9 May 2013 (CB61-67) together with statutory declaration to which I have already referred and these matters were carefully considered by the Tribunal at paragraphs 110-123.

5. The gravamen of the Tribunal’s decision is set out in the findings and reasons at paragraph 124 and following.  They constitute a detailed and thorough examination of the various matters that the applicant had said from time to time.  Paragraph 126 the Tribunal noted a number of points in relation to the claimed detention from 2008, but it should be noted the Tribunal gave the applicant the benefit of the doubt in relation to the discrepancy between the dates asserted from time to time as to the commencement of incarceration as being January or May 2008 (see paragraph 132).  It was, however, persuaded that the discrepancies in the date of release (December 2011 as opposed to 5 February 2012) were significant (see paragraph 135 and following). 

6. In the end it is perhaps sufficient to say by way of paraphrase that the Tribunal simply did not believe the applicant’s central claims as to imprisonment, both as between 2008 and 2012, and again from February to March 2012.  The Tribunal did not accept the explanations proffered by the applicant and did not otherwise accept that the applicant would face either Convention or complementary protection harm in the event that he was returned to Sri Lanka. 

The Amended Grounds of Application –

Ground 1

The Tribunal erred in law in not taking relevant evidence into consideration in making the decision. 

Particulars

a) Applicant had provided oral and written evidence that he was being suspected as an associate of a person who has been accused as an LTTE member or supporter and constantly harassed. 

b) The Tribunal failed to note or apply the Country information produced that indicated that persons of Tamil ethnicity and those suspected or perceived to be associated with LTTE were being persecuted. 

c) That failed asylum seekers have been rearrested, detained and tortured by the SL authorities. 

d) The Applicant had only been released from detention and has not been assessed and or for psychiatric problems where he was tortured and beaten out of his brains.  In a situation like this unless he has been assessed treated and counselled for the traumatic appearance, any interview with him will be unacceptable.  The Tribunal applied the interview techniques applied to normal persons rather than tan (sic) traumatic persons after torture to raise the question of credibility over minor incidents. 

e) The Applicant had provided oral and written evidence that he was being suspected as an associate of a person who was being accused as an LTTE member or supporter and constantly harassed. 

f) The Tribunal failed to note or apply the Country information produced that indicated that persons of Tamil ethnicity and those suspected or perceived to be associated with LTTE were being persecuted. 

g) That failed asylum seekers have been rearrested detained and tortured by the SL authorities and subjected to continual arrest and detention. 

1. The applicant’s written submissions (titled Outline of Argument) filed 13 May 2014 have to be approached with caution.  They adopt a highly partisan tone and assert as facts matters that the Tribunal had decided did not occur.  At paragraph 14, by way of example, it is asserted that “there is no question that the applicant was imprisoned for four years from 2018 (sic) to 2012”. 

2. That assertion is entirely contrary to the Tribunal’s findings. 

3. I accept that the submission of the first respondent at written submissions paragraph 20 that the ground really involves three subsets, namely: 

   (a) the applicant’s association with a person accused of LTTE membership or support; 

   (b) country information about the persecution of Tamils on the basis that their ethnicity; 

   (c) the applicant’s membership of a particular social group, namely, people who have asylum in Australia and failed.

4. The written submissions of the first respondent go on at paragraphs 20-36 to deal with each of these matters in considerable detail. 

1. It is sufficient for these purposes for me to say that contrary to the position adopted by counsel for the applicant the first respondent’s submissions are clearly correct.

2. The Tribunal did not accept that the applicants had been detained at all, whether from 2008 to 2012 or from February 2012 to March 2012.  Given that this was so, it is scarcely surprising the Tribunal did not accept that the applicant’s association with Raja was a matter likely to give rise to any harm in the event of the applicant’s return to Sri Lanka.  The Tribunal simply did not, in the ultimate, accept any of the applicant’s assertions about the narrative giving rise to his alleged incarceration.

3. Similarly, the Tribunal dealt in considerable detail with country information before arriving at the conclusions it reached and this was particularly relevant also to the applicant’s membership of the social group of persons who had sought asylum in Australian and returned.

4. Put shortly, as I think it can be, there is simply no force in the criticisms advanced by counsel for the applicant, which run directly contrary to the findings that the Tribunal actually made. 

Ground 2

The Tribunal did not take adequate consideration in the application of the complementary protection provision in the Migration Act. The Tribunal was unreasonable or illogical in making the adverse conclusion.

Particulars 

a) The Applicant has provided numerous incidents of country information that supported his application which showed that Sri Lanka does persecute persons of Tamil ethnicity, those accused or perceived to be associated with the former LTTE and failed deported asylum seekers.  The Tribunal had not applied these evidence in making the decision. 

b) The Tribunal failed to consider that the applicant was initially arrested on suspicion of association with another person arrested and made to disappear because of his having taken photographs of important security locations and that irrespective of his release was, and always on suspicion.

c) The Tribunal failed to take into consideration that the applicant was continually being arrested and it is not illogical to conclude that he was always in danger of being killed by the authorities and if that he had genuine fear that in being returned to Sri Lanka his life was in imminent danger. 

a) The Tribunal failed to note or apply the Country information produced that indicated that persons of Tamil ethnicity and those suspected or perceived to be associated with the LTTE were being persecuted; 

b) That failed asylum seekers have been rearrested detained and tortured by the SL authorities; 

c) The Tribunal failed to take into consideration that the Applicant was continually being arrested and it is illogical to conclude that he was always not in danger of being killed by the authorities if deported.

1. Once again, it is apparent that the written and oral submissions made start from the premise that the applicant’s asserted facts about his detention are to be believed.  Paragraph 20 of the written submissions starts “it is to be noted that the applicant was imprisoned for four years and released without charge.”

2. This fundamental deficiency in the applicant’s methodology, once again, points to the weakness of his criticisms of the Tribunal’s decision.

3. The Tribunal considered the complementary protection regime at paragraphs 174-182.  Although this part of the written decision is, self-evidently, much shorter than the part devoted to the Refugee Convention claim, the Tribunal noted, at paragraph 175, that it did not accept the applicant’s account of his detentions.  The Tribunal was clearly aware of what the complementary protection criterion involved (paragraphs 16 and 18, CB 10-11) and in my view, the Tribunal’s consideration of it as disclosed from the paragraphs to which I have referred appear to reveal a conscientious consideration of the complementary protection criterion.

4. Insofar as the ground seeks to raise again issues of country information, this is erroneous for the reasons already given.  The Tribunal clearly did consider country information, in a proper and appropriate way, in relation to the complementary protection criterion.  This included, self-evidently, the possibility of significant harm arising because of the applicant’s Tamil ethnicity and as a person returned from Australia having sought asylum.

5. It must be remembered the Tribunal expressly found, and in my view on evidence open to it, that the applicant was not a person at risk of harm as a perceived LTTE member or associate.

Ground 3

The Tribunal erred in law in failing to apply Sections 354, 420(1) and 2(b), S 422(3) of the Migration Act in a way that is just and fair or act according to substantial justice and the merits of the case.

Particulars

a) The Tribunal has not provided justifiable reason to conclude that Australia does not have the obligation under the Complementary Protection provision with so much evidence provided. 

1. This ground is not addressed in the applicant’s outline of argument, nor in the applicant’s oral arguments (exhibit 1) or in the oral submissions made.

2. I agree with the written submissions of the first respondent (paragraph 45) that there is nothing on the face of the record, or in the submissions made by the applicant, to indicate that there has been a failure to act consistently with “way of operating” expressed in section 420(1) or 2(b) of the Act. The other written criticisms advanced by the first respondent are also self-evidently correct. I have already dealt with the question of the application of the complementary protection provision above.

Ground 4

1. Although not expressed in terms in the amended application, the written submissions of the first respondent deal with a matter asserted in the applicant’s outline of argument as a fourth ground.  It is characterised at paragraph 48 of the first respondent’s submissions as:

   “The applicant makes a general complaint that the conduct of those who interviewed him was inappropriate given that the applicant had only been released from detention and had not undergone psychiatric assessment.  Specifically, the applicant says, “The Tribunal applied the interview techniques applied to normal persons rather than tan [sic] traumatic persons after torture to raise the question of credibility over minor incidents”.”

2. The applicant’s counsel adds “When he was let out, he would have suffered severe mental trauma affecting his ability to recall events properly and could only recall over a period of time.”

3. The first respondent’s written submissions point out (paragraph 49) that there was no evidence before the court to support the claim that there was severe mental trauma or an inability to recall, and note that in any event, the Tribunal conducted its assessment with sensitivity to the potential for the applicant to be affected in this way.  As I have already indicated, the Tribunal gave the applicant the benefit of the doubt in respect of the inconsistency of the date of his initial incarceration, and otherwise gave the applicant the benefit of the doubt in respect of his failure to report sexual abuse in prison at an earlier stage.

4. It is, in my view, quite clear that the Tribunal did not fall into jurisdictional error of the sort that the applicant asserts.  Rather, the Tribunal was conscious of and applied a sensitive approach to the assessment of the applicant’s evidence.

Conclusion

1. This is of course not a final hearing, but a hearing of an application for an extension of time.  Nonetheless, for the reasons earlier given, the explanation for the delay is not, in my view, satisfactory, although I emphasise this is not the predominant consideration with which the court is concerned in this instance.  Rather, it is the unlikely prospects of success were the matter to proceed to full hearing that is of particular and decisive significance.  The applicant’s case, as put before the court, adopts as a premise a number of vital assertions as to fact, which the Tribunal simply did not in fact accept.

2. The submissions put are radically misconceived.  For the reasons given above, I do not think that the applicant’s prospects of success are sufficiently great that it is in the interests of justice to extend time.

3. For these reasons, the application of time in which to bring the application pursuant to s.477 of the Act will be dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Demack.

Date: 20 May 2016