BZAFV v Minister for Immigration & Anor

[2014] FCCA 2808

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAFV v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2808

Catchwords:
MIGRATION – Application for extension of time – no merit to proposed substantive application – application dismissed.

Legislation:  

Migration Act1958, ss.32(2), 32(2AA), 477
Migration Regulations1994

SZMNO v Minister for Immigration and Citizenship [2009] FCA 797

Applicant: BZAFV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 1068 of 2013

Judgment of: Judge Jarrett

Hearing date: 18 November 2014

Date of Last Submission: 18 November 2014

Delivered at: Brisbane

Delivered on: 18 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Barataraj

Counsel for the First Respondent: Ms A.J. Stoker

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 21 November, 2013 pursuant to s.477(2) of the Migration Act1958 (Cth) to extend the period prescribed by s.477(1) of the Act is dismissed.

2. The amended application filed on 10 January, 2014 is dismissed.

3. The applicant to pay the first respondent's costs of and incidental to the application fixed in the sum of $6646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 1068 of 2013

BZAFV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

1. By his amended application filed on 10 January, 2014 the applicant seeks an order that a decision of a refugee review tribunal made on 27 September, 2013 be quashed. He seeks the issue of a writ of mandamus requiring a tribunal to determine the applicant's visa application according to law. He seeks an injunction prohibiting the first respondent from relying upon “the recommendation of the independent protection assessment reviewer”. And he asks for an order “declaring that the Applicant meets s.32(2) of the Migration Regulations1994”.  He also seeks an extension of time within which to bring his application for review.

2. In his amended application filed on 10 January, 2014, he does not seek an extension of time within which to bring his application for review.  He sets out in the amended application the grounds of review.  They are three in number and each ground has one or more sub-grounds to it. 

3. The applicant requires an extension of time to bring his application for review under s.477 of the Migration Act1958.  It seems uncontroversial in this case that the applicant's original application, filed as it was on 21 November, 2013 was 16 days late.

4. The decision to grant an extension of time is dependent upon the consideration of a number of factors.  It is a discretionary matter.  The written submissions for the first respondent set out a convenient summary of those matters as collected by Barker J of the Federal Court in SZMNO v Minister for Immigration and Citizenship [2009] FCA 797. In that case, and without intending to be exhaustive, his Honour suggested that the relevant factors are:

   (a)  Applications for extension of time are not to be granted unless it is proper to do so.  The legislative time limits are not to be ignored.  The prima face rule is that proceedings commenced outside of the time period will not be entertained. 

   (b)  There must be some acceptable explanation for the delay;

   (c)  Any prejudice to the respondent in defending the proceedings caused by the delay is a material factor militating against the grant of an extension;

   (d)  The mere absence of prejudice to the respondent is not enough to justify the grant of an extension; and

   (e)  The merits of the substantial application are to be taken into account in considering whether an extension is to be granted.

5. Quite properly, the first respondent in this case concedes that he is not prejudiced by the delay in filing the application.  But the authorities indicate, as I have just recorded, that the mere absence of prejudice to the respondent is not enough to justify the grant of the extension.  The onus is on the applicant to satisfy the Court that it is an appropriate exercise of the discretion reposed in the Court to grant the extension. 

6. In his initial application, filed on 21 November, 2013 and seemingly filed by the applicant himself, he says:

   The Applicant has not been able to find legal representation and for advice.  The Applicant will be able get representation to file an amended Application.  This is an interim Application.

7. The first thing to say about that is that it seems to convey the idea that the applicant, who was filing the application himself, was not legally represented. But a lack of legal representation is hardly an acceptable explanation for not filing an application within a time limit. Common experience shows that any number of applications are filed in this Court, in all of its jurisdictions, by self-represented people within time limits that are prescribed by a great many number of statutes, including the Migration Act. Some of those people fall into the same category as the applicant in this case, that is, a person who has arrived in this country without a valid visa and who applies for the grant of a protection visa.

8. The matter came before the Court on its first court date on 18 December, 2013.  Directions were made which permitted the applicant to file an amended application.  At that stage, the applicant was represented by counsel.

9. An amended application was filed on 10 January, 2014. The amended application seeks the relief that I have already set out. The relief that it seeks is, in part, inappropriate to this application. For example, although it seeks relief in respect of a decision of an independent protection assessment reviewer, there is no such decision that is relevant to the application before the Court. What is being challenged is a decision of a refugee review tribunal, something entirely different. Further, I am not sure what the order declaring that the applicant meets s.32(2) of the Migration Regulations is about. The oral argument on behalf of the applicant did not address that order.

10. Ordinarily, on an application to extend time there is some evidence which sets out the reasons for the delay in commencing the application.  It is upon the basis of the evidence that the Court decides whether the explanation for the delay is acceptable.  Evidence in this Court, as in a great many number of other courts, takes one of three forms:  what is deposed to in an affidavit – and affidavits are a regular feature of interlocutory applications such as this; what comes from witnesses in evidence-in-chief and cross-examination, something not particularly relevant to this application;  and what is contained in documents which are tendered and accepted by the Court as exhibits in proceedings.

11. The applicant has filed no affidavits dealing with the delay in commencing these proceedings.  By anybody.  There is simply no evidence at all about the delay in bringing the proposed review application. 

12. I cannot conclude, therefore, that whatever explanation there might be for that delay, it is acceptable. 

13. The authorities make it clear that perhaps the most significant factor to be considered on an application such as this is whether the substantive application which the applicant wishes to pursue, has merit.  Unmeritorious claims generally do not attract an extension of time.  Meritorious ones, or arguably meritorious ones, perhaps do. 

14. The argument in this case, particularly from the applicant, has been directed towards the merits of the substantive application.  And it is to that matter that I now turn. 

15. The applicant is a citizen of Sri Lanka. He is a Tamil and a Hindu. He was born in 1955. He arrived at Christmas Island on 25 July, 2012 and is what the Migration Act would describe as "an irregular maritime arrival." On 8 August, 2012 he participated in an entry interview for the purposes of a protections obligations determination.

16. On 11 December, 2012 he made a claim for a protection visa.  With that application he lodged a table of "members of same family unit and other close relatives."  The significance of that will become clear shortly.  On 18 February, 2013 the first respondent's department notified the applicant that his application for a protection visa had been refused.  That is to say, a delegate of the first respondent refused the protection visa.  Reasons were given.  On 6 March, 2013, the applicant applied for review by a refugee review tribunal.

17. The applicant, not being satisfied that it could grant the visa without an oral hearing, invited the applicant to appear before a hearing of the tribunal on 9 July, 2013.  On 5 July, 2013 the applicant's representative provided a written submission to support the applicant's claims to protection.  The tribunal conducted its hearing on 9 July, 2013.  The applicant attended the hearing together with a representative.  There was an interpreter present for the hearing.

18. The tribunal asked the applicant to provide any further information that he wished to provide by 23 July, 2013.  After granting a short extension to do that, on 30 July, 2013 a further written submission was given to the tribunal in support of the applicant's claims.  On 9 August, the tribunal wrote to the applicant to invite him to comment, or respond to, some information that the tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The tribunal, of course, had a statutory obligation to do that.

19. On 15 August, the applicant's legal representative wrote to the tribunal asking for an extension to respond to that request.  The request was re-issued, and in the events that occurred on 23 August, 2013 the applicant's representative made further submissions to the tribunal.  Those written submissions are contained in a letter from the legal representatives for the applicant to the tribunal.  Paragraph 2 of that letter says this:

    The applicant has travelled to Australia with his grandnephew who was born and raised in the northern province of Sri Lanka. Accordingly, his grandnephew has revealed that he was forcefully recruited and briefly involved with the Liberation Tigers of Tamil Eelam during the concluding stages of the Sri Lankan civil war. This information was accepted by the tribunal and the applicant's grandnephew's matter has recently been remitted to the Department of Immigration and Citizenship for reconsideration with the direction that he satisfied Section 36(2A) of the Migration Act.

20. That piece of information led to, or represented it seems, a claim by the applicant that he was linked to a person who was associated with the Liberation Tigers of Tamil Eelam.  That, it was suggested either expressly or inferentially, would lead to him being the subject of persecution and serious harm should he be returned to Sri Lanka.  It was a matter which was relevant to the tribunal's consideration of whether the applicant satisfied the criteria for the grant of a protection visa.  Accordingly, and recognising it seems to me, the seriousness of that claim, the tribunal decided to have a further hearing of the matter.

21. The applicant was invited to attend a further hearing.  He accepted the invitation, and on 16 September, 2013 a further hearing was held.  There was, again, an interpreter present.  The applicant was permitted to give further evidence in relation to that claim.  On 27 September, 2013, the tribunal decided that it would affirm the decision of the first respondent's delegate not to grant the applicant a protection visa.  The tribunal has provided extensive written reasons for its decision.

22. It is from that decision that the applicant seeks review in this Court.  The amended application, as I indicated, sets out three grounds of review.  The first has four parts to it.  It is in these terms:

    The member failed to consider that:

    (a) the applicant had arrived in Australia with a minor child for which he was a de facto guardian.

    (b) that this minor had applied for and granted a protection visa and will need to have guardian to look after him in Australia.

    I will omit the name of that minor person, given that he has been granted a protection visa.

    (c) that by refusing the protection visa the decision has resulted in the possible deportation of the minor's grandfather and the only blood relative of the minor who would be able to look after the minor.

    (d) failed to consider that the applicant, having undergone the traumatic experiences prior to leaving Sri Lanka and the experience of the dangerous boat journey together with a longer lapse of time, his memory may be affected and some flexibility and benefit of doubt must be given regarding his credibility on accepting that he was an active political member of an opposition party to the government.

23. On its face, that ground of review seeks to take issue with the merits of the tribunal's decision.   Although the ground is articulated as raising an error of law in that the tribunal failed to take into account relevant considerations, a perusal of the tribunal's decision makes it clear that the tribunal considered each of the matters about which the applicant says the tribunal paid no attention.  The tribunal was alive to the argument that the applicant wished to make about his connection to the person who had been granted a protection visa, and to whom the applicant was apparently related.

24. As the first respondent points out in submissions, the tribunal recognised that such a claim was being made by the applicant in his representative’s letter of 23 August, 2013 and that the claim was important.  Indeed, it was so important that the tribunal afforded the applicant a further hearing to deal with that issue, and, then, in its decision, considered his evidence about that issue in, what I would view as, considerable detail.

25. The tribunal concluded, however, that the link that the applicant had to the person who has been granted a protection visa, was not such as to lead the tribunal to conclude that the applicant was likely to be the subject of persecution should he return to Sri Lanka.

26. In the course of argument, I was troubled a little by the notion that the tribunal might not have appreciated that the claim or part of the claim that was being made was that there was a link between the applicant and the person granted the protection visa and that by reason of that link, the applicant might be subjected to persecution should he be returned to Sri Lanka.  But on reflection, it is clear that the tribunal was alive to that and dealt with it in paragraphs 119 and 120 of the Reasons for Decision.  In paragraph 119 the tribunal says:

    119.  The Tribunal notes that the UNHCR has stated that those with “previous (real or perceived) links” with the LTTE may be in need of international protection, although it indicated that this would depend on the specifics of the individual case. It indicated that the nature of these more elaborate links may include former LTTE combatants or “cadres” and persons “with family links or who are dependent on or otherwise closely related to persons” with such profiles and persons with family links to persons with the relevant profiles. The Tribunal has had regard to this. However, it has considered carefully the particular circumstances of this case. The Tribunal has not accepted that the applicant has ever come to the adverse attention of the Sri Lankan authorities in the past. It has not accepted that the Sri Lankan authorities know that the applicant has come to Australia with Vithusan. It has considered the nature of the applicant’s relationship to Vithusan as his grand nephew and his relationship with Vithusan’s mother as his niece. It accepts that the applicant lived in Mullaitivu until 1987 and may have had contact with Vithusan’s mother at that time. However, it considers that he has had limited contact with Vithusan’s family since that time and that his circumstances are very different to those of Vithusan. While it considers that the applicant has had limited contact with Vithusan’s family, it accepts that he travelled to India with Vithusan’s mother in March 2012. However, it has found that he was able to depart and re-enter Sri Lanka on his own passport, and does not accept that he was of any adverse interest to the Sri Lankan authorities in spite of the problems that Vithusan’s family previously experienced.

    120.  Submissions have drawn attention to the fact that the applicant has departed Sri Lanka illegally, something the Tribunal will discuss in further detail below. However, even having regard to this and even accepting that the applicant will be questioned on his return (as also discussed below), the Tribunal finds to be remote the chance that his relationship with Vithusan and his family would cause the applicant to come to the adverse attention of the authorities on return as a person with an actual or perceived link or association with the LTTE. It finds to be very remote the chance that he would be perceived as someone affiliated with or considered to be a supporter of the LTTE. It finds to be very remote the chance that he would be accused of transporting terrorists or interrogated or harmed in relation to whom he had brought to Australia. In making this finding, the Tribunal has had regard to the fact that it would be known that Vithusan and his mother were living in the Northern Province in the closing stages of the war. It has had regard to the difficulties that have been experienced by Vithusan’s family, including the questioning of Vithusan and his mother by the Sri Lankan authorities and the disappearance of Vithusan’s father. It has had regard to the fact that the applicant previously lived in the north, something the Tribunal finds is now many years in the past.

27. At paragraph 121, the tribunal then goes on.  I will not repeat that paragraph.  What is clear from the tribunal's decision is that the tribunal has considered the possible perception of links between the applicant and the LTTE, or an LTTE cadre, and the effect of that on the applicant’s protection visa claim.  It is something that has clearly been considered. 

28. The argument that is put by the applicant is that the tribunal did not understand, because it did not ask, about the nature and depth of the relationship between the applicant and the person to whom the protection visa has been granted.  However, there are, it seems to me, two answers to that. 

29. The first is that whilst there is no onus on the applicant as such, it is for him to satisfy the tribunal that his claims meet the criteria required for the grant of a protection visa.  The tribunal convened another hearing in respect of this issue.  That was because the tribunal decided that it could not grant the protection visa on the basis of the material that had been provided to it.  The holding of a second hearing put the applicant and his representatives on notice that more information was necessary to satisfy the relevant criteria. 

30. Secondly, the nature and extent of the relationship is really not to the point unless the applicant can also establish that the nature and extent of that relationship was known to others beyond the applicant and the person to who the protection visa was granted.  It may be one thing for them to have a very close relationship, and something entirely different for them to have that relationship and for the relevant Sri Lankan authorities to know about it and thereafter draw a conclusion that the applicant has links with the LTTE.   The applicant's evidence before the tribunal indicated that the nature and extent of the relationship between he and his grandnephew was such that he was entirely unaware of the grandnephew's involvement in the LTTE. 

31. The findings that were made by the tribunal and the conclusions that it reached on this issue were open to it on the evidence before it.  This ground of review, it seems to me, descends into merits review, something which is not available in this Court. 

1. The first three sub grounds of ground (a) deal with that issue.  The last deals with some findings of credibility made by the tribunal in respect of the applicant.  They concern his claims that he was politically active in Sri Lanka.  Much of the tribunal's decision is devoted to considering that issue and the evidence given by the applicant in relation to that matter.   The tribunal carefully considered those claims.

2. The tribunal had difficulty with the inconsistencies between the applicant's evidence and his statements on various occasions, and the submissions made from time to time by his representatives.  The difficulties the tribunal had with those matters were put to the applicant in the way in which the tribunal was obliged to put them.  He was given an opportunity to deal with them.  The findings made by the tribunal in respect of those issues, and the findings that the tribunal made in respect of credibility, were findings which were open to the tribunal.  Those findings are findings of fact, par excellence.  There is no basis upon which this Court should interfere with those findings. 

3. The second round of review is that:

   The member erred in law in failing adequately to consider under the Complementary Protection provision, that

   a.  A different tribunal having accepted that the minor child was at serious risk of harm if protection visa was not granted, and the applicant, if deported, the chances of being identified as having a removed a person wanted by the Sri Lankan authorities is real and substantial.

4. A reading of this ground of review gives away that it is, in fact, seeking merits review. The assertion that the member failed to adequately consider a matter takes issue with the way in which the tribunal has weighed the relevant evidence which bears on that issue. The fact is that the tribunal considered quite extensively the complementary protection claims under s.32(2AA) of the Act. The tribunal specifically referred to whether there was a real risk that the applicant would suffer harm if he was to be returned to Sri Lanka. The tribunal directed itself properly with respect to the law that it needed to apply. The tribunal considered whether the applicant, being suspected of LTTE links, might be in need of complementary of protection and rejected that claim.

5. There is no error, in my view, in the way in which the tribunal dealt with those issues. 

6. The third ground of review is:

   The Member did not apply fair procedure rule in making an application. The Member failed to apply S354, S420 (1). 2(b) and S423(1) of the Migration Act

   a.  The Member has a duty and responsibility to make himself available to country information (in support and adverse to the Applicant’s case) in order to make a fair and just evaluation of the Applicant's Application and use easily and freely an obviously available Country information without an inquiry process (that the Tribunal was not under obligation), other than that which supported the adverse decision of the Tribunal.

   b.  Information inter alia, such as The Sri Lankan Bulletin of Returns prepared by the Country of Information service by the Home Office of the UK Border Agency in December, 2012 which will have been made available to the Member the same way he received other documents from the same agency.

   (faithfully reproduced)

7. I am really not sure what that ground means.  I think it means that the tribunal preferred to use country information that contradicted the applicant's preferred country information.   However, it is clear that the choice of country information relied upon by the tribunal is a matter entirely for the tribunal.  No complaint can generally be made that the tribunal has preferred one example of country information over another. 

8. In any event, I accept the first respondent's submissions that the tribunal's decision reveals that it considered a wide range of country information, including the country information that the applicant and his representatives supplied in support of the applicant's own submissions.  It was given, I accept, fair consideration.  I accept the first respondent's argument that this ground of review, too, seeks to engage in merits review. 

9. In my view, the proposed application that the applicant wishes to pursue has very little merit.  It is unlikely, it seems to me, to succeed.  The tribunal's decision was a lengthy and thorough discussion of the claims made by the applicant.  It contains the relevant and necessary findings and the reasons for those findings.  It reveals no error in procedure.  It certainly reveals, in my view, no jurisdictional error. 

10. In circumstances where the proposed claim lacks merit to that degree, it is inappropriate to grant an extension of time within which to bring such a claim. 

11. For all those reasons, therefore, the application to extend time, filed on 21 November, 2013 is dismissed.  For completeness, the amended application filed on 10 January, 2014 is also dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:       2 December 2014