CSR15 v Minister for Immigration and Border Protection

[2019] FCA 736

FEDERAL COURT OF AUSTRALIA

CSR15 v Minister for Immigration and Border Protection [2019] FCA 736

Appeal from:	CSR15 v Minister for Immigration & Anor [2019] FCCA 28
File number(s):	VID 97 of 2019
Judge(s):	BEACH J
Date of judgment:	21 May 2019
Catchwords:	MIGRATION – protection (class XA) visa – application for an extension of time to appeal – decision of Federal Circuit Court of Australia – application dismissed
Date of hearing:	21 May 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	26
Counsel for the Applicant:	The Applicant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Mr J Maloney
Solicitor for the First Respondent:	DLA Piper Australia
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

VID 97 of 2019

BETWEEN:

CSR15

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	BEACH J
DATE OF ORDER:	21 MAY 2019

THE COURT ORDERS THAT:

1.The application for an extension of time within which to appeal be dismissed.

2.The applicant pay the first respondent’s costs of and incidental to his application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(revised from transcript)

BEACH J:

1. The applicant seeks an extension of time to appeal from a decision of a judge of the Federal Circuit Court of Australia.  His Honour dismissed the applicant’s application for judicial review of the decision of the second respondent (the Tribunal) made on 24 November 2015.  The Tribunal had affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (the visa).

2. The applicant’s application for an extension of time was accompanied by an affidavit and a draft notice of appeal.  The draft notice of appeal advances two grounds expressed in the following terms:

   1.Applicant thinks the order, which is based on the application has a question of law and it should be investigated.

   2.Applicant has provided lot of information and supporting documents for [his] protection Visa application. Applicant believes this information was not considered properly and not granted a fair order.

3. The extension of time sought is lengthy if one calculates the time from the orders made by the primary judge, but very short indeed from the time that the primary judge published his reasons.  For relevant purposes and in favour of the applicant, I will use the latter period.  Moreover, I will also assume in favour of the applicant that he has a reasonable excuse for the delay and that the delay, whichever time frame one uses, has caused no prejudice to the Minister.  Nevertheless I would refuse the extension of time sought as the applicant’s proposed grounds of appeal lack relevant substance.

4. The applicant is a citizen of Sri Lanka and was born in the Northern Province on 14 December 1992.  He arrived in Australia on 31 July 2012 and applied for the visa on 18 December 2012.

5. The applicant’s application was accompanied by a statutory declaration which claimed that he faced a real chance or risk of serious or significant harm owing to his having been abducted, and he and his family subsequently threatened.  He also claimed to fear harm on the basis of his Tamil ethnicity and Hindu faith, and on the basis of actual or imputed Liberation Tigers of Tamil Eelam (LTTE) links.  He also feared the prospect of his being harmed on his return to Sri Lanka as a failed asylum seeker, having departed unlawfully.

6. As to his Tamil ethnicity and Hindu faith, the applicant claimed that the Sri Lankan authorities had been repopulating Tamil areas with Sinhalese people, who were misappropriating Tamil property and that the authorities were destroying temples and mosques.

7. The applicant further claimed that his cousins were forcibly recruited by the LTTE in 1996 and killed in combat in 2000, and that thereafter his uncle’s and aunt’s family confronted problems with the Sri Lankan authorities.  He claimed that two other cousins had gone missing since the cessation of the Sri Lankan civil war.

8. Further, the applicant claimed that in February 2012 he was abducted by Sri Lankan authorities, taken to a remote location and detained, beaten and interrogated.  Of his six abductors, one was unmasked and recognisable to the applicant as a local.  That individual warned him not to tell anyone about the abduction and thereafter regularly took him to a desolate area and “threatened [him] not to make any comments or report the abduction”.  A group of men also came to his home and discussed the abduction with his mother.  As a result of his continued mistreatment the applicant’s mother made arrangements for him to leave Sri Lanka.  His family informed him that he had been enquired after following his departure.

9. On the various bases that I have just outlined, the applicant claimed that if he returned to Sri Lanka he would be arrested and harmed or killed by the authorities or pro-government forces because of the above events and/or his cousins’ LTTE affiliation.  He also claimed that he would be harmed by the persons who abducted and subsequently threatened him.  He also claimed that he would be imputed with an adverse political opinion because of his departure.  He further claimed that the authorities would be unwilling to protect him because he is a Tamil, and that he could not safely relocate.

10. On 10 December 2013 the delegate of the Minister refused the applicant’s application for the visa and a review of that decision was then sought before the Tribunal.

11. The applicant appeared before the Tribunal on 16 April 2015, assisted by an interpreter and represented by his migration agent.  On 24 November 2015, the Tribunal affirmed the delegate’s decision.  I note that the applicant did not seek to put before the primary judge or myself any transcript or tape of the hearing before the Tribunal or interview before the delegate.

12. Before the Tribunal, the applicant appears to have put his abduction claim differently in some respects from how it was put to the delegate.  For example, having conceded before the delegate that he did not fear harm from the Eelam People’s Democratic Party (EPDP), he asserted before the Tribunal that the men who had abducted him may have been from the EPDP, and indeed that the EPDP is “the only group that would do this” ([15]).  Further, he indicated that he had been harassed and threatened by other men in addition to the “unmasked man” and that he was beaten and threatened with death by these men ([19] to [20]).

13. The Tribunal did not accept that members of the EPDP “abducted the applicant in February 2012 and interrogated him in relation to LTTE involvement in a case of mistaken identity”.  It also noted country information indicating that the EPDP would not have perpetrated an abduction of this kind and doubted that the applicant was abducted by mistake.  Accordingly, it did not accept that the applicant was abducted as claimed ([25] to [26]).

14. The Tribunal did not accept that people had called on the applicant’s mother looking for him, or that people had threatened him thereafter ([26]).  On this point, the Tribunal queried why the applicant’s claimed abductors would have been concerned about the applicant reporting the abduction to the authorities, given that on the applicant’s own account, reporting it was pointless since the abductors worked with authorities.  It further queried why several of the applicant’s abductors would have confronted the applicant without concealing their identities, if they had been concerned about being reported.  The Tribunal did, however, accept that Sri Lankan authorities may have enquired about the applicant’s whereabouts because of the suspicion that he had left Sri Lanka illegally ([27]).

15. With respect to the applicant’s fear that he would be suspected of LTTE links, the Tribunal noted the applicant’s claims that two of his cousins had been killed, and two others had gone missing.  However, it found that over 40,000 Sri Lankans had gone missing at the end of the civil war in Sri Lanka and that the applicant had not himself been questioned or detailed as an LTTE affiliate after the war.  It also did not accept that just because he left Sri Lanka illegally and claimed asylum in Australia, the applicant would be suspected of LTTE links ([29] to [30]).

16. As to the applicant’s claims arising from his Tamil ethnicity, the Tribunal considered country information about the “Sinhalisation” of northern Sri Lanka after the conflict, and the adverse effects on some Tamils.  It noted that the country information indicated that the mistreatment of Tamils had been declining ([31] to [36]).

17. As to the applicant’s claims arising from his Hindu faith, the Tribunal noted the applicant’s statement at the hearing that he was able to practise his religion by attending a nearby temple.  The Tribunal also had regard to country information indicating that in relation to religious freedom there is little official discrimination at least ([37] to [39]).

18. As to the applicant’s claims that he would be questioned, detained and mistreated on return to Sri Lanka because he had applied for asylum in Australia, and would be imputed to have links with the LTTE, the Tribunal set out the procedures likely to apply to the applicant and it concluded that these did not amount to serious or significant harm ([40] to [44]).

19. As to the applicant’s claims that he would face serious or significant harm arising from having departed Sri Lanka unlawfully, the applicant gave evidence to the Tribunal about a man known to him who was detained, mistreated and put on reporting conditions as a returnee ([45]).  In considering this submission the Tribunal had regard to the country information indicating that illegal departure is an offence under the Sri Lankan Immigrants and Emigrants Act ([46]).  The Tribunal considered that the applicant would likely be charged under the Immigrants and Emigrants Act and may be briefly remanded before being granted bail.  But it considered this to be a function of a law of general application, and did not consider that the applicant faced a real chance of being seriously harmed in detention.  It also considered that the substandard prison conditions were a function of a lack of resources.  Further, it was not satisfied that the imposition of a fine would give rise to a real risk of significant harm.  Now the applicant, in submissions to me this morning, made reference to the Tribunal not considering the question of a fine and the consequences of non-payment.  But I did draw to the applicant’s attention the Tribunal’s reasons at [60] where that matter had been considered and the asserted fear rejected, with in my view no error disclosed in the Tribunal’s reasons.

20. In summary, the Tribunal was not satisfied that the applicant faced a real chance or risk of serious or significant harm on any claimed basis and affirmed the delegate’s decision.

21. As I have already said, the applicant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court, which application was dismissed by the primary judge.

22. Let me turn to the proposed grounds of appeal.  Ground 1 does not properly identify a ground of appeal.  As to ground 2, in substance the applicant appears to contend that either the primary judge or the Tribunal failed to consider his claims.  Further, in the affidavit accompanying his extension of time application, the applicant contends that his case was “not heard properly and [his] evidence [was] not taken into consideration properly”.

23. This proposed very general ground of appeal is without merit.  I have considered the Tribunal’s reasons which indicate that it duly considered the applicant’s claims, and provided him with the opportunity to comment on the information on which it subsequently relied, particularly in relation to its assessment of the likely treatment of the applicant on his return to Sri Lanka given his illegal departure and status as a failed asylum seeker.

24. Further, in my view the primary judge’s reasons disclose a conscientious engagement with the grounds raised by the applicant before the primary judge and further articulated in an outline of submissions, which apparently the applicant had provided to the primary judge.

25. In summary, in my view there has been no proper articulation of any ground of appeal that would have sufficient merit to warrant me granting the extension of time sought.

26. For all of those reasons, the application for an extension of time within which to appeal from the Federal Circuit Court will be refused with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach.

Associate:

Dated:       22 May 2019