CEA15 v Minister for Immigration
[2017] FCCA 2699
•27 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CEA15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2699 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – extension of time application – oral application for an adjournment – adjournment refused – inadequate explanation for delay – Tribunal’s decision irrational and internally inconsistent – Tribunal misunderstanding the meaning of the word activist – decision set aside – matter remitted. |
| Legislation: Migration Act 1958, s.477(2) |
| Cases cited: Minister for Immigration and Border Protection v BJC16 (2017) 347 ALR 62; [2017] FCAFC 114 |
| Applicant: | CEA15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2516 of 2015 |
| Judgment of: | Judge Riley |
| Hearing date: | 27 October 2017 |
| Date of last submission: | 27 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 27 October 2017 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the first respondent: | Adam Cunynghame |
| Solicitors for the first respondent: | Sparke Helmore Lawyers |
| Counsel for the second respondent: | None |
| Solicitors for the second respondent: | Sparke Helmore Lawyers |
ORDERS
The applicant’s oral application for an adjournment be refused.
Pursuant to s.477(2) of the Migration Act 1958, the time for the applicant to file an application for review of the decision of the Refugee Review Tribunal dated 26 June 2015 be extended to 6 November 2015.
The decision of the Refugee Review Tribunal (in matter number 1319462) made on 26 June 2015 be set aside.
The matter be remitted to the second respondent for redetermination according to law.
The costs order made on 13 April 2016 be vacated.
The question of the applicant’s costs of the proceeding be adjourned to 17 November 2017 at 10am.
By 10 November 2017, the applicant file and serve an affidavit exhibiting evidence of any amounts he has paid or incurred by way of legal costs in this proceeding.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2516 of 2015
| CEA15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from the transcript)
This is an application for an adjournment of an application for an extension of time in a migration matter. The application was filed on 6 November 2015 by the applicant. The proceeding was dismissed for non-appearance by a registrar on 13 April 2016. The applicant applied for reinstatement of the proceeding on 20 February 2017. That application came before the court on 17 March 2017. The application was adjourned pending the outcome of either Gagandeep Singh v Minister for Immigration and Border Protection & Anor (MLG145 of 2016) or Minister for Immigration & Border Protection v BJC16 & Anor (VID292 of 2017).
Following the decision in Minister for Immigration & Border Protection v BJC16 & Anor (2017) 347 ALR 62; [2017] FCAFC 11, which affirmed that the registrar did not have power to dismiss for non-appearance, the matter came on for directions on 2 October 2017. The applicant appeared in person on that occasion as well as on 17 March 2017. On 2 October 2017, the matter was listed for hearing today, 27 October 2017.
The applicant appeared today without the benefit of legal representation. He told the court that he had been unable to file written submissions as directed by 9 October 2017 because of his financial situation. He said that he was unable to provide any argument at this point. However, he said that he would try hard to produce the necessary arguments if he were given some time. The applicant said that he would try his best to get legal assistance. When asked if he had made any inquiries about getting a lawyer, he said that he had a lawyer but could not pay the required fees. He said the lawyer was someone named Yasika, who he had met in a private capacity and who was not in a firm. He said Yasika had asked him for $1,500 to prepare written submissions. The applicant said that he had paid a different lawyer who was named Madu to prepare the application that was filed on 6 November 2015. The applicant said he would try to engage a lawyer somehow to produce written submissions.
The applicant said that he was not presently working. When asked how he would be able to pay a lawyer, he said he would ask his friends to help him. When asked why he had not obtained that help earlier, he said they were having difficulty at present. When asked when they might be able to overcome their difficulties, he said within about four months. When asked why he thought the situation might be different in four months, he said some of his friends are working now.
The Minister opposed the application for an adjournment. The Minister noted that there was no indication on record that the applicant had ever had legal assistance. The Minister noted that the application to this court was filed almost two years ago. The Minister said the applicant’s claim that he was unable to afford a lawyer was not supported by any evidence. The Minister noted that the Refugee and Immigration Legal Centre (“RILC”) had assisted the applicant before the Refugee Review Tribunal (“the Tribunal”). The Minister submitted that the court should have no confidence that the applicant would be able to get legal assistance with help from his friends within a reasonable time frame.
I am not persuaded that there is a reasonable prospect of the applicant obtaining legal assistance within a reasonable time frame. The applicant had assistance before the Tribunal from RILC, so he was clearly aware of the existence of such organisations. The prospect of the applicant’s friends being able to assist him financially to obtain legal assistance seems very unlikely given that the matter has been on foot for so long and there has been no sign of any substantial legal assistance at any time. The original application, which the applicant says was prepared with the assistance of a lawyer by the name of Madu, has pro forma grounds without particulars. In relation to the extension of time, it simply says:
Trying to make the request to the Minister.
The affidavit in support of the application, sworn or affirmed by the applicant on 15 September 2015, is also of a pro forma nature.
In all the circumstances, I do not consider that there would be any benefit in adjourning the matter for the applicant to seek legal assistance. There will be an order that the oral application for an adjournment be refused.
The written application to this court is an application for an extension of time in which to bring an application for review of a decision of the Tribunal. The applicant is a citizen of Sri Lanka. He arrived in Australia as an illegal maritime arrival on 23 July 2012. He applied for a protection visa on 4 December 2012. A delegate of the Minister refused that application on 16 December 2013. The applicant then applied to the Tribunal for review.
The applicant was assisted in that review by RILC. RILC provided pre and post-hearing written submissions to the Tribunal. The applicant attended a hearing before the Tribunal on 14 January 2015. He was assisted by an interpreter and his representative. The Tribunal affirmed the delegate’s decision.
The applicant claimed that he was owed protection on the basis of his political opinion as a person who actively supported the United National Party (“the UNP”), his illegal departure from Sri Lanka and as a failed asylum seeker.
The Tribunal accepted some aspects of the applicant’s claims. The Tribunal accepted that the applicant and his family were supporters of the UNP in Sri Lanka. The Tribunal accepted that the applicant would have taken part in attending campaign meetings, putting up campaign posters or banners, distributing pamphlets and undertaking canvassing for votes. However, the Tribunal did not accept that these activities meant that the applicant was an activist. The Tribunal accepted that on 27 September 2011, the applicant and some colleagues were assaulted while they were putting up posters. The Tribunal found it plausible that the applicant’s poster team had been assaulted by people aligned to opposing political parties. The Tribunal expressly accepted that the applicant was assaulted on that occasion. The Tribunal accepted that one of the applicant’s colleagues complained to the police. The Tribunal expressly accepted that there was limited action in response to the complaint.
The Tribunal said that it had regard to and accepted country information which indicated that those who may face a real chance of harm for reasons of their political opinion are those who are opposition politicians or activists. The Tribunal did not identify precisely the country information it referred to. However, the Tribunal did attach to its reasons for decision Annexure B which consisted of extracts of country information. The country information included a report from a Commonwealth expert team which said that:
a)elections in Sri Lanka have historically been violent events;
b)election-related incidents cumulatively numbered 809, of which 55 per cent were classified as major incidents including five murders, 99 acts of assault and 108 instances of threat and intimidation; and
c)the pasting of campaign posters appeared to be a trigger for many incidents of violence.
Annexure B also included reference to a DFAT report to the effect that violent confrontations between members of the same party or their coalition allies have also been reported. For example, five people were reportedly shot and wounded at a rally between supporters and opponents of UNP opposition leader Ranil Wickremesinghe in Matara in the Southern Province in October 2013.
I have been unable to identify any country information in Annexure B which specifically refers to political activists or defines what that term means. Nevertheless, the Tribunal said that it accepted that those who may face a real chance of serious harm for reasons of their political opinion are those who are opposition politicians or political activists. Notwithstanding that the Tribunal accepted that the applicant had been assaulted while putting up election posters, the Tribunal said in the last sentence of paragraph 52 of its reasons for decision:
The Tribunal is not satisfied the applicant has been singled out or targeted for serious harm for his political activities or for his actual or imputed political opinion …
Confusingly, the Tribunal said that it was not satisfied that the applicant had been singled out for those reasons in the past, but then went on to finish the sentence by saying:
if he returns to Sri Lanka now or in the reasonably foreseeable future.
That is, the whole last sentence of paragraph 52 of the Tribunal’s reasons for decision said:
The Tribunal is not satisfied the applicant has been singled out or targeted for serious harm for his political activities, or for his actual or imputed political opinion if he returns to Sri Lanka now or in the reasonably foreseeable future. (emphasis added)
That sentence does not make sense.
The Tribunal rejected another claim of assault made by the applicant on the basis that his evidence on that topic was inconsistent. The Tribunal again said that the applicant was not an activist, despite finding that he did put up posters, attended meetings and canvassed for votes. The Tribunal considered that the applicant did not face a real risk of serious harm for reasons of his political opinion.
The Tribunal also considered whether the applicant faced a real risk of serious harm for reasons of his unlawful departure from Sri Lanka and for being a failed asylum seeker. However, the Tribunal did not accept that the applicant faced a real risk of serious harm for any of those reasons. The Tribunal also considered the complementary protection criteria and concluded that the applicant did not face a real risk of significant harm for any of those reasons.
In considering an extension of time application, the court must consider:
a)the length of the delay;
b)the reasons for the delay;
c)whether there would be any prejudice to the respondent if the extension of time were granted; and
d)the prospects of success of the substantive application.
In the present case, the application was about three months late. The only explanation offered by the applicant for the delay was that he tried to seek Ministerial intervention. That is generally regarded as being an inadequate reason for a delay in filing an application to this court.
The Minister did not point to any prejudice if an extension were granted.
In relation to the prospects of success, I consider that the applicant has substantial prospects of success in the substantive application. That is because the Tribunal’s findings in relation to the assault of the applicant on 27 September 2011 are internally inconsistent. The Tribunal accepted that the applicant was assaulted with others while putting up campaign posters by people who the Tribunal accepted may have been aligned to opposing political parties. The Tribunal accepted that the police took limited action in response to a complaint about the incident. The Tribunal accepted that country information indicated that those who may face a real chance of serious harm included those who are political activists. However, the Tribunal did not accept that the applicant was an activist, although it accepted that he attended campaign meetings, put up campaign posters and banners, distributed pamphlets and undertook canvassing for votes. Those sorts of activities fit within the usual meaning of activist.
The Tribunal said that it accepted that the applicant was a low level supporter of the UNP, but not that he was an activist. However, that finding is not consistent with the applicant undertaking the activities that the Tribunal accepted that he undertook.
The Tribunal’s somewhat garbled conclusion at the end of paragraph 52 of its reasons for decision says that the applicant has not been singled out for serious harm for his political activities, when the Tribunal, in fact, accepted that he had been, and then without explanation, seems to say that he would not be targeted in the reasonably foreseeable future.
I consider that the Tribunal has made irrational findings. The findings that it has made are internally inconsistent. I also consider that the Tribunal has simply not understood correctly the meaning of the word activist. For these reasons, it seems to me that the applicant does have good prospects of success in the substantive application.
During the hearing, I asked the Minister’s representative whether, if an extension of time were granted, the matter should be set down for a final hearing on another occasion. The Minister said that would be unnecessary as the matter had been fully argued today.
Although the applicant did not have a reasonable explanation for the delay in filing the current proceeding, I consider that the inadequacies in the Tribunal’s decision warrant an extension of time being granted.
For the same reasons, I consider that the matter should be remitted to the Tribunal for re-determination.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 3 November 2017
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