CCQ15 v Minister for Immigration

[2017] FCCA 1859

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCQ15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1859

Catchwords:
MIGRATION – Application to extend time – no discernible error in Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A(1), 424(4)(a)(iii), 425, 476(2), 477

SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69
WZAWB v Minister for Immigration & Anor [2016] FCCA 1345

Applicant: CCQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2325 of 2015

Judgment of: Judge McNab

Hearing date: 11 July 2017

Date of Last Submission: 11 July 2017

Delivered at: Melbourne

Delivered on: 11 July 2017

REPRESENTATION

The Applicant in person

Solicitors for the Respondent: Ms Heldson of Sparke Helmore

ORDERS

1. The application filed 16 October 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2325 of 2015

CCQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex-Tempore)

1. This matter comes before the Court by way of an application filed on 16 October 2015 seeking review of the decision of the Tribunal. The application was filed seven days beyond the 35 day deadline specified by s.477(1) of the Migration Act 1958 (Cth) (‘the Act’).

2. The grounds of the application set out in the application are:

   (1)     That the decision of the Tribunal:

   (a)     is affected by an error of law; and

   (b)     denied the applicant procedural fairness.

   (2) I have made an application for assistance through the Victorian Legal Aid and am waiting for a decision.

3. Ground 2 is not a recognised ground of review.

4. The Minister opposes the extension of time for the filing of this application on the grounds that there is no reasonable or sufficient explanation for the delay and the substantive application does not have reasonable prospects of success.

5. In relation to the explanation for delay, the applicant has filed an affidavit sworn 15 October 2015, which sets out in summary that the applicant was waiting for legal advice from his employer’s lawyer and as a result of waiting for that advice there was a delay in filing the application. He deposes that he received legal advice regarding the Tribunal decision and was informed that there was a deadline of 28 days to apply to the Federal Circuit Court.

6. At the hearing, the applicant also raised that he had sought assistance with Victoria Legal Aid but otherwise did not have funds to pay for lawyers.

7. In my view, the explanation for delay is not sufficient of itself to extend the time for the filing of the application pursuant to s.477(2) of the Act.

8. The fact that the applicant was seeking legal advice or there was some delay in obtaining representation is of itself not a sufficient ground to extend time. I refer to the decision of Judge Lucev of this Court in WZAWB v Minister for Immigration & Anor [2016] FCCA 1345 at [87]–[90], where his Honour made reference to a number of Federal Court authorities supporting that proposition.

9. In relation to whether the application has sufficient merits to justify the extension of time, the decision of the Tribunal is comprehensive and intelligible. The Tribunal at [12]–[13] of its decision sets out the applicant’s claims, including claims that were made in entry interview. The Tribunal summarises the applicant’s evidence at [17] and does so in a comprehensive way. I note that at the hearing before the Tribunal the applicant was assisted by a migration advisor and an interpreter.

10. Following the hearing, the applicant’s advisor made detailed submissions concerning political violence in Sri Lanka and the risk to the applicant arising from his real and/or imputed political opinions and the Tribunal summarised those submissions at [19].

11. The Tribunal set out the relevant law at [4]–[8] of the decision.

12. The Tribunal affirmed the delegate’s decision and set out its reasons for doing so from [20] and following. The Tribunal had strong doubts in relation to the credibility of the applicant’s claims to fear harm arising from his political opinion and in particular because they were unable to be substantiated by any external source. The Tribunal noted at [20] that the only documentary evidence the applicant had submitted in support of his claims was a Sri Lankan driving licence.

13. The Tribunal found that the applicant spoke fluent Sinhalese and had knowledge of Sri Lanka and in the absence of other information to the contrary, it accepted that he was an ethnic Sinhalese citizen of Sri Lanka and that his identity was as he claimed it to be.

14. The Tribunal considered that there had been obvious and significant development in the applicant’s claims about his support for the UNP since arriving in Australia in September 2012.[1] The Tribunal set out its reasons for that finding. The Tribunal considered the applicant’s evidence at the hearing about his political activities and found that his evidence was markedly vague and on some points implausible and inconsistent.[2]

    [1] Tribunal decision dated 4 September 2015 [24].

    [2] Ibid [26].

15. The Tribunal considered whether the applicant was at risk of harm on return to Sri Lanka as a result of having sought protection in Australia at [33]–[40] and did so with reference to country information and information provided by the applicant’s representative following the hearing.

16. The Tribunal accepted that the applicant would be subjected to standard procedures that apply to all returnees on his return, but was not satisfied that the applicant would be arrested, detained, or otherwise subjected to harm.[3]

    [3] Ibid [39].

17. The Tribunal considered the applicant’s position as a returned asylum seeker at [33]–[40] and did so having regard to country information. At [41]–[45], it considered whether the applicant might be at risk of harm because of his illegal departure from that country.

18. On the basis of the country information before it, the Tribunal was not satisfied there was a real chance that on return to Sri Lanka the applicant would face more than questioning at the airport on arrival, or arrest and detention for a relatively brief period while on remand. I note that the Tribunal raised the question of the applicant’s treatment on his return to Sri Lanka with him at the hearing, in particular in relation to the setting of bail and the imposition of a brief period on remand.

19. When invited to comment, the applicant told the Tribunal that he had been explaining his experiences in Sri Lanka and that he did not mind what would happen to him at the airport. It appears that the question of the applicant’s treatment if he was to return to Sri Lanka was raised with the applicant and he was given an opportunity to respond and place submissions before the Tribunal, which it considered.

20. I can discern no jurisdictional error in the approach taken by the Tribunal.

21. In relation to ground 1(b) of the application, I can discern no failure on the part of the Tribunal to accord procedural fairness. The information relied upon by the Tribunal in the making of its decision was excluded from the scope of s.424A(1) of the Act by s.424(4)(a)(iii) or did not constitute information for the purposes of s.424A(1).

22. The applicant was properly invited to a hearing before the Tribunal which he attended with the assistance of his representative and an interpreter. The concerns in relation to the applicant’s evidence were put to him.[4] The applicant was afforded a procedural fairness break in the course of the hearing and the applicant was put on notice of the determinative issues on review of the delegate’s decision. In my view, on review of the Tribunal’s decision there is no apparent breach of s.425 of the Act.

    [4] See Tribunal decision dated 4 September 2015 [17]-[18].

23. Counsel for the Minister properly raised the question of the operation of the decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. I note that this decision is the subject of an appeal to the High Court and there is a decision pending, however the decision of the Full Court is presently binding on this Court and in any case, it is not apparent that the decision of the Tribunal directly engages the principles in that case. The basis for that conclusion is the finding of the Tribunal at [51] that the applicant would not be subjected to significant harm were he to be detained or arrested at the airport.

24. In the light of that finding of fact, the issue as to whether the harm gives rise to subjective or objective intention does not arise because the Tribunal has found that there would be no such harm in the circumstances of this case.

25. No particular prejudice has been pointed to by the Minister as a result of the delay in filing the application, but I note that this is not of itself a basis for extending time. In my view no arguable ground has been advanced and the Court is not satisfied that it is in the interest of justice to extend time.

26. In the circumstances, I dismiss the application to extend time and order that the application filed 16 October 2015 be dismissed and the applicant pay the respondent’s costs fixed in the sum of $5,800.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  8 August 2017