CKX15 v Minister for Immigration

[2016] FCCA 1076

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKX15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1076

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – extension of time application – no reasonable explanation for delay – whether the Tribunal took irrelevant considerations into account – whether the Tribunal took irrelevant considerations into account – whether the Tribunal properly exercised its jurisdiction – no arguable case of jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476, 477

Applicant: CKX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3140 of 2015

Judgment of: Judge Street

Hearing date: 6 May 2016

Date of Last Submission: 6 May 2016

Delivered at: Sydney

Delivered on: 6 May 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Mr A Keevers
Sparke Helmore

ORDERS

1. The application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3140 of 2015

CKX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 12 October 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived on Christmas Island on 28 June 2012 as an undocumented irregular maritime arrival and on 28 November 2012 the applicant lodged an application for protection.

2. The applicant claimed that he had a well-founded fear of persecution in Sri Lanka because of his ethnicity being a Tamil, his imputed political opinion against the government or pro-Tamil separatist due to his father’s involvement in the LTTE in the 1980s and because he is from the north of Sri Lanka and has been absent for 20 years. The applicant identified that he had left Sri Lanka illegally with his mother.  The applicant also claimed to fear harm by reason of his membership of a particular social group of young Tamil men who have either been active in or suspected to have been active in the LTTE and by reason of being a member of a particular social group of young Tamil men who, in addition to the above, escaped to and claimed asylum in a Western country. 

3. The Tribunal considered the applicant’s claims and relevantly found that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason should he be returned to Sri Lanka now in the reasonably foreseeable future. The Tribunal also found it was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm. It was in these circumstances that the Tribunal found that the applicant did not satisfy the criteria under ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958. 

4. By letter dated 26 August 2015, the applicant was invited to attend a hearing before the Tribunal that took place on 23 September 2015 at which the applicant attended to give evidence and present arguments and was assisted by an interpreter as well as being represented by his registered migration agent. The Tribunal’s decision was delivered on 12 October 2015 and the application for relief was filed in this Court on 9 November 2015 and, although not expressly identifying the same, the application required an extension of time under s.477.

5. At the commencement of the hearing the Court explained to the applicant that the hearing was one for the determination of whether there should be an extension of time under s.477 of the Migration Act 1958.  The Court explained to the applicant that required two matters to be considered. First, the explanation for the delay and, second, whether there were sufficiently arguable grounds to warrant an extension of time in the interests of the administration of justice. 

6. The Court explained to the applicant that whether there was a sufficiently arguable case involved whether the Tribunal’s decision was affected by legal error.  The Court explained that the legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant.  The Court explained that he proposed to identify the evidence and then hear submissions from the applicant and then submissions from the solicitor for the first respondent and then submissions in reply from the applicant.  The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

7. On 21 January 2016, a Registrar of the Court made orders giving leave to the applicant to file an amended application, affidavit evidence and submissions. No such documents were filed.

8. The grounds of the application are as follows:

   1. The Tribunal made irrelevant considerations while applying the complementary protection provisions.

   Particulars

   a) At [51] the Tribunal did not accept that I had any personal “characteristics” or any profile that will result in me being targeted either upon my arrival or upon my return to my home region. This motivation test is part of the assessment for refugee status and not relevant to the complementary protection provisions;

   b) At [51] the Tribunal was satisfied that I have some family members and I am young, educated without the commitments of a wife and children and have previously obtained employment and shown an ability resettle in two other countries. This finding is not relevant to the complementary protection provisions.

9. In relation to ground 1, I accept the first respondent’s submission that the matters identified in paras.(a) and (b) were relevant considerations for the Tribunal in relation to the question of complementary protection under s.36(2)(aa). The findings referred to in para.51 in the applicant’s particulars (a) and (b) derive from findings made by the Tribunal earlier in its reasons at paras.40, 42 and 43. Those adverse findings by the Tribunal were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. No sufficiently arguable case of jurisdictional error is disclosed by the grounds of the application.

10. From the bar table the applicant explained that he had been in India for 22 years as a refugee and that if he and his mother had wanted to go back to Sri Lanka they would have done so. Nothing said by the applicant from the bar table identified any arguable ground of jurisdictional error. This is a case where there is no explanation for the delay, but, that said, the delay was particularly short. The more significant considerations are the merits of the application in considering whether an extension should be granted under s.477. In that regard, I am not satisfied that there is a sufficiently arguable case of jurisdictional error to warrant an extension of time in the interests of the administration of justice. The application for an extension of time under s.477 is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 May 2016