CGN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1081

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1081

File number(s):

SYG 2215 of 2016

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

21 May 2021

Catchwords:

MIGRATION – application to extend time for applying for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision made by the Immigration Assessment Authority affirming decision not to grant a Safe Haven Enterprise visa – whether extension of time necessary in the interests of the administration of justice – whether adequate explanation given for delay in applying for remedies – whether there is any merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth) Sch 1, Pt 3, Div 1, Item 2

Migration Act 1958 (Cth) ss 5H, 36(2)(aa), 473GB, 476, 477(1), 477(2)

Cases cited:

BDE17 v Minister for Immigration & Anor [2018] FCCA 2476

Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

Number of paragraphs:

26

Date of hearing:

6 May 2021

Place:

Sydney

The Applicant:

Appeared in person, assisted by an interpreter

Solicitor for the First Respondent:

Mr T Hillyard of Sparke Helmore Lawyers

ORDERS

SYG 2215 of 2016

BETWEEN:

CGN16

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	21 MAY 2021

THE COURT ORDERS THAT:

1.The application made pursuant to s 477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s 477(1) of the Act in relation to the decision made by the second respondent on 1 July 2016 is dismissed.

2.The applicant pay the first respondent’s costs set in the amount of $3,606.

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant applies for an order under s 477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35 day period prescribed by s 477(1) of the Act for making an application to this Court for remedies under s 476 of the Act in relation to a decision made by the second respondent (Authority). By that decision the Authority affirmed the decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).

   CLAIMS FOR PROTECTION

2. The applicant stated his claims for protection in a statement that formed part of his application for a SHEV.[1] The applicant there claimed as follows:

   [1] CB143-146

   (a)The applicant is a citizen of Sri Lanka, having been born in Batticaloa, Eastern province. He is also a Tamil and a Hindu.

   (b)In 2007 the applicant moved to his sister’s house. He had been living with his grandparents after the applicant’s mother passed away. The applicant left his grandparents’ house because local militias from the Tamil paramilitary group known as Karuna came to the applicant’s grandparents’ house looking to recruit the applicant.

   (c)At about 9 pm on a day in January 2007 armed Karuna members came to the applicant’s sister’s house. They threatened to kill the applicant and his sisters and grandmother. The group left the house after they had taken jewellery the applicant’s sisters were wearing.

   (d)Over the next few months the situation became much worse. Some Karuna men approached the applicant when he was standing near a temple and told the applicant to get onto their motorbike. The applicant refused, and it “was only because there were lots of people around that they didn’t physically force” the applicant.

   (e)The applicant’s sister and other family members arranged for the applicant to go to Qatar in 2007. The applicant worked in Doha for about 4 or 5 years. The applicant’s family told him not to return to Sri Lanka because the Karuna group were still trying to extort the applicant’s family and other Tamils.

   (f)The applicant returned to Sri Lanka in 2012 because the applicant’s sisters told the applicant the situation in Batticaloa had improved.

   (g)The applicant stayed at his auntie’s house; and he was using his auntie’s phone because the applicant did not have his own phone. Someone approached the applicant’s auntie and asked for the applicant’s phone number. They forced the applicant’s auntie to “give them” the number. The applicant’s auntie told the applicant what happened and told him to be careful.

   (h)About 15 days later someone called the applicant on “this phone”. The caller was a Tamil speaker who said he was a Karuna member. The caller threatened to kill the applicant if he did not pay him 200,000 rupees. He wanted the applicant to deliver the money at a particular temple near the applicant’s auntie’s home. The applicant believes “they must have thought” the applicant “had saved a lot of money when working in Qatar”. The caller threatened to abduct and shoot the applicant after the applicant said he did not have any money.

   (i)About 5 days after the call, some Tamil men went to the applicant’s grandparents’ home looking for the applicant. The applicant’s grandparents told the men they did not know where the applicant was. The applicant’s auntie told the applicant not to go home. The applicant went to his sister’s house where he stayed until he left Sri Lanka.

   (j)The applicant fears that if he returns to Sri Lanka he will be harmed or killed by a paramilitary group, like the Karuna, the Pillaiyan, or some other group; and that he had heard from people the applicant trusts that some asylum seekers that have returned to Sri Lanka from Australia have been detained on arrival and tortured by the authorities.

3. At his interview before the delegate (SHEV interview) the applicant claimed he came to Australia because he had problems with the CID (that is, the Criminal Investigation Department), the Special Task Force (STF), the army, and the Karuna group.[2]

   [2] CB227, [20]

   AUTHORITY’S REASONS

4. The Authority:

   (a)accepted that in 2007, while the applicant was at his sister’s house with his sisters and grandmother, four armed men whom the applicant believed were from the Karuna group robbed the house, and that the applicant was pushed during this incident; but, given the applicant did not claim the persons attempted to recruit, kidnap, or otherwise harm the applicant, the Authority was not satisfied the applicant was a personal target of this attack;[3]

   (b)accepted the claim the applicant made at the SHEV interview that he was approached by armed Karuna group members three times; and that he moved from his grandparents’ house to his sister’s house out of fear of being taken by a paramilitary group;[4] but the Authority found the approaches were opportunistic attempts by paramilitary groups interested in recruiting young Tamils;[5]

   (c)found the applicant was not of interest to the Karuna group, or any other paramilitary group, although the Authority accepted the applicant was genuinely fearful about being recruited, and this motivated his going to Qatar;[6]

   (d)accepted that, on his return to Sri Lanka from Qatar, some men asked after him, but the Authority was not satisfied the men were Karuna group members;[7]

   (e)accepted that after the applicant returned to Sri Lanka a person called the applicant demanding money, and some men visited the  applicant’s auntie’s or grandparents’ house five days later; but the Authority was not satisfied the men were Karuna group members, or that there was any link between them and the phone threat;[8] and

   (f)found it implausible that the Karuna group, or any other paramilitary group had any interest in the applicant.[9]

   [3] CB225, [8]

   [4] CB225, [10]

   [5] CB226, [11]

   [6] CB226, [12], [13]

   [7] CB226, [14]

   [8] CB227, [19]

   [9] CB227, [19]

5. The Authority did not accept the applicant had any problems with the Sri Lankan authorities, and it was satisfied the applicant had never been of adverse interest to the CID, the STF, or the army, or any other branch of the Sri Lankan authorities.[10]

   [10] CB227-228, [20]

6. Relying on these findings, the Authority:

   (a)did not accept the applicant faces a real chance of harm because of any perceived wealth;[11]

   (b)was satisfied the applicant does not face a real chance of forced recruitment or other harm from the Karuna group or other paramilitary groups in Sri Lanka;[12]

   (c)was not satisfied the applicant faces a real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil race, or his Tamil race and origins from the East, or because of his being a young Tamil male, or because he had worked overseas;[13] and

   (d)accepted that on his return to Sri Lanka he will be treated as a failed asylum seeker who departed illegally that will result in his being arrested at the airport and detained for a brief period, but will be fined and released if he pleads guilty, or, if the applicant does not plead guilty, he will be released on bail on his own security.[14]

   [11] CB228-229, [25]

   [12] CB229, [26]

   [13] CB231, [34]

   [14] CB233, [43]

7. Given these findings the Authority was not satisfied the applicant is a “refugee” within the meaning of s 5H of the Act; and concluded the applicant also did not satisfy s 36(2)(aa) of the Act because the Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country there is a real risk the applicant will suffer significant harm.

   PRINCIPLES

8. Under s 477(2) of the Act the Court may order the extension of the 35 day period prescribed by s 477(1) of the Act if two things are satisfied. First, an application for such order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.

9. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[15]

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:

   (a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;

   (b)Whether there is any prejudice to the Minister;

   (c)Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

   [15] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284, at [47]

10. The Federal Court has held that, on an application under s 477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. In the words of Mortimer J in MZABP v Minister for Immigration and Border Protection, a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[16] Further:[17]

    If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

    [16] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [63] (references omitted)

    [17] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391, at [62] (references omitted)

    EXTENT OF AND EXPLANATION FOR DELAY

11. In the form of application the applicant filed in this Court the applicant states he made efforts to find legal representation, and that took time; and the applicant then attempted to collect documents to prepare a financial hardship form. At the hearing before me the applicant, who is not legally represented, but who appeared with the assistance of an interpreter, told me that he received a call from the Department of Immigration and was told to report to the Department to go back to Sri Lanka if he did not proceed with his case by filing a fresh application. The applicant’s work rights had been withdrawn. The applicant’s grandmother, who had looked after the applicant, had died. The applicant approached a father from the church who helped the applicant prepare the form of application.

12. Although this explanation reveals hardship deserving of sympathy, it does not constitute an adequate explanation for the applicant’s delay. Given, however, the applicant delayed by only 11 days before he filed his application with this Court, the applicant’s not giving an adequate explanation for his delay would carry very little weight if I were to determine the proposed grounds of application raise arguable grounds for relief. 

    APPARENT MERITS

13. The application contains the following two grounds (errors in original):

    1.The Immigration Assessment Authority has failed to consider the full integers of the claim of the Applicant:

    Particulars:

    i)The IAA has accepted that the Applicant was subject to robbery by members of the Karuna Faction in the Eastern Province of Sri Lanka as per [8] of the IAA decision.

    ii)However the IAA has failed to consider the Applicant will be liable for extortion from the paramilitaries by virtue of belonging to the group Wealthy Persons from the Eastern Province of Sri Lanka

    2.The IAA has failed to engage the PAM3 regulations as published and required under section 499 of the Migration Act 1958 (Cth)

14. At the hearing before me the applicant said he has appealed to the Court because “this is error by the authority’s form”.[18] I asked the applicant why he believed the Authority’s decision is wrong in the manner in which it considered the applicant’s claims. The applicant said he suffered a lot in his country, and he had problems from paramilitary groups.

    [18] T9.05

15. I requested the interpreter to interpret to the applicant each of the grounds stated in the grounds of application, and I asked the applicant whether he wanted to say anything about or in relation to the grounds. After ground 1 was interpreted the applicant repeated aspects of the grounds he advanced in support of his application for a SHEV. After ground 2 was interpreted the applicant repeated an aspect of the claims for protection he had made in applying for a SHEV.

16. The matters the applicant submitted at the hearing disclose no arguable case of jurisdictional error. The matters the applicant stated go solely to the merits of the applicant’s claims for protection. As I informed the applicant, this Court does not have jurisdiction to determine whether the applicant is entitled to protection.

17. Ground 1 makes two claims. The first is that, given the findings the Authority made, it ought reasonably to have found that the applicant faced a real chance of harm from the paramilitary groups. That is not reasonably arguable.

    (a)Although the Authority was satisfied the applicant’s sisters were robbed in the presence of the applicant and his grandmother, and that the robbers were Karuna group members, the Authority was not satisfied the applicant was the target of the robbery.

    (b)Although the Authority accepted that before he travelled to Qatar Karuna group members had approached the applicant, the Authority found these were opportunistic encounters.

    (c)Although the Authority accepted the applicant was approached by persons after he returned to Sri Lanka from Qatar, the Authority was not satisfied the persons were Karuna group members.

    (d)In light of these reasons it is not arguable it was not open to the Authority not to be satisfied the applicant faces a real chance of significant harm from members of the Karuna group or from members of other paramilitary groups.

18. The second claim ground 1 makes is the Authority failed to consider whether the applicant will be liable to extortion because he belongs to the social group of wealthy persons. That is not arguable. As I have already noted, the Authority considered that claim, but concluded it did not accept the applicant faces a real chance of harm because of any perceived wealth.[19]

    [19] CB228-229, [25]

19. Ground 2 claims the Authority “failed to engage the PAM3 regulations as published and required under section 499” of the Act. “PAM3” appears to be intended to refer to “Procedures Advice Manual 3” issued by the Department of Home Affairs, and the reference to “as published and required under section 499” of the Act appears to be intended to be a reference to “Direction No 56 – Consideration of Protection Visa applications” dated 21 June 2013 (which was replaced by “Ministerial Direction No 84 – Consideration of Protection visa applications” made on 24 June 2019). The ground does not identify the manner in which PAM3 applied to the Authority’s consideration of the applicant’s claims for protection; and the ground does not in any event articulate how the Authority failed to engage with “the PAM3 regulations”. For those reasons alone, ground 2 is not arguable.

20. That ground 2 is not arguable is further supported by BDE17 v Minister for Immigration & Anor, where Judge Smith held that PAM3 did not apply to the Authority’s exercise of its power of review:[20]

    The sixth and seventh particulars essentially assert that the Authority failed to apply the divisions of the Departmental guidelines. Those guidelines, it may be inferred, are the Department’s Procedure and Advice Manual (PAM) 3. In Direction No. 56 made by the Minister under s.499 of the Act, there is a requirement upon decision-makers exercising certain powers to take account of those guidelines.

    The difficulty for the applicant’s argument here is that the Authority was not exercising one of the specified powers. Clause 2 in Direction No. 56 specifies that the relevant powers are under ss.65, 414 and 415 of the Act. The Authority was not exercising any of those powers. Rather, it was exercising the power under s.473CC of the Act. For that reason, there was no obligation on the Authority to have regard to, or to apply the provisions of the PAM 3.

    [20] BDE17 v Minister for Immigration & Anor [2018] FCCA 2476, at [37], [38]

    437GB certificate

21. There is one final potential ground to consider; and that arises from there having been issued a certificate purportedly pursuant to s 473GB of the Act (Certificate). The Certificate is in evidence, as is the single document to which it applies, being a document titled “IMA PV – Identity Assessment Form” and marked “draft” (Identity Check).[21] The Identity Check refers to potential inconsistencies in information relating to the applicant’s identity, but there is nothing in the document that could arguably give rise to any issues relating to the applicant’s credibility.

    [21] Affidavit of T Hillyard 23.04.2021

22. The Minister accepts the Certificate is invalid; and that the Authority did not disclose to the applicant the Certificate or the Identity Check. The Minister submits, however, that the Authority accepted the applicant was the person he claimed to be and, for that reason, the Identity Check could have had no relevance to the Authority’s consideration of the applicant’s case. The Minister therefore submits that to the extent the Authority was bound to disclose the Certificate and the Identity Check, but it made an error by failing to do so, that error was not material.

1. The Authority accepted the applicant was the person he claimed to be; and it is beyond argument that the Certificate and the Identity Check are incapable of having been relevant or potentially relevant to the reasons on which the Authority relied for not being satisfied the applicant met the criteria for the grant of a SHEV. Assuming, therefore, the applicant would bear the onus of establishing materiality, it is not arguable that the Authority’s disclosing the Certificate and the Identity Check to the applicant could realistically have resulted in a different decision.[22] Assuming, on the other hand, the Minister would bear the onus of showing that the Authority’s failure to disclose the Certificate and the Identity Check was not material, it is beyond argument that the Authority’s disclosing to the applicant the Certificate or the Identity Check could not have resulted in a different outcome.[23]

   [22] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [45]; see now MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, at [2]-[4]

   [23] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [128]

   CONCLUSION, DISPOSITION, AND COSTS

2. The applicant has not provided an adequate explanation for his delay in applying to this Court, and there is no arguable merit in any of the grounds on which he intends to rely if an order extending time were made. I am therefore not satisfied it is necessary in the interests of the administration of justice that an order should be made under s 477(2) of the Act extending the 35 day period provided for by s 477(1) of the Act. I propose, therefore, to dismiss the application for an order under s 477(2) of the Act.

3. The Minister applies for costs, and that those costs be set in the amount of $3,737. The relevant amount provided for in Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) as it applied at the time the applicant filed his application with this Court is $3,606, being the amount specified in Item 2 of Division 1 of Part 3 of Schedule 1 to these rules. I explained to the applicant that the usual order relating to costs is that the successful party is entitled to an order that the losing party pay the successful party’s costs. The applicant said he would not be able to pay such costs.

4. That the applicant may not be able to pay the costs the Minister seeks is not a matter that leads me to exercise my discretion against awarding costs. I am also satisfied that $3,606 is a fair measure of the Minister’s costs which in justice the applicant should be ordered to pay. I also propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $3,606.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       21 May 2021