CTA15 v Minister for Immigration

[2016] FCCA 1318

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTA15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1318

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) visa whether there are grounds to extend time in the interests of the administration of justice – no arguable jurisdictional error raised by the grounds of application – application dismissed.

Legislation:

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

Applicant: CTA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 468 of 2015

Judgment of: Judge Street

Hearing date: 25 May 2016

Date of Last Submission: 25 May 2016

Delivered at: Adelaide

Delivered on: 25 May 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent:

Ms Milutinovic

Sparke Helmore

ORDERS

1. The application for an extension of time under s.477 of the Migration Act1958 (Cth) is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

ADG 468 of 2015

CTA15

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 10 August 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country. The applicant departed Sri Lanka illegally on 22 June 2012 and arrived in Australia on 8 July 2012.

2. The applicant’s original claims for protection were on the grounds that he was a Christian and a Tamil from Negombo.  The applicant feared harm due to the economic and environmental difficulties of being a fisherman in the Negombo area.  The applicant referred to the fact his wife had convinced him to travel to Australia for employment.  The applicant said he experienced no particular harm in Sri Lanka.  The applicant said that he fears on return to Sri Lanka he will be charged with unlawfully exiting the country and will be imprisoned for two years. 

3. The delegate found that the applicant did not meet the criteria under s.36(2) of the Migration Act 1958.  On 9 May 2014, the applicant applied for a review.  By letter dated 11 June 2015, the applicant was invited to attend a hearing to be held on 24 July 2015.  The applicant did not attend on that date but did send in a communication asking the Tribunal to fix a further date for hearing.  In light of the applicant’s communication, the Tribunal fixed a further date for hearing on 10 August 2015 by letter dated 29 July 2015. 

4. The applicant attended on that day to give evidence and present arguments and was assisted by an interpreter.  The Tribunal identified that the applicant’s claims were that he had illegally departed Sri Lanka and that he would be returned as a failed asylum seeker from a Western country. The Tribunal explained to the applicant that it had to determine whether the applicant was a refugee in relation to the criteria under the legislation and in relation to complementary protection grounds. 

5. The applicant confirmed that he did not fear persecution because of his Tamil race, religion or political opinion.  The applicant said that he and his family had no political ties or links with the LTTE and that he never resided in an LTTE-controlled area.  The applicant said he had never had trouble with the police or come to the attention of the Sri Lankan authorities.  The Tribunal found the applicant still owns a fishing boat and has family members who can assist him with fishing work in the future. 

6. The Tribunal found that the applicant would be able to work as a fisherman if he returns to Sri Lanka in the reasonably foreseeable future and earn a living and be able to support his family.  It was in those circumstances that the Tribunal found that the applicant did not have a well-founded fear of harm for reasons of leaving Sri Lanka illegally.  The Tribunal also found that there are no substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk he will suffer significant harm. 

7. The Tribunal concluded that the criteria under s.36(2) was not met and affirmed the decision of the delegate. The original application filed by the applicant identified the following grounds:

   1. As I have mentioned in Annexure-01, I did not tell the correct information, at the time of tribunal hearing, hearing that the information would be exposed to Sri Lankan government – Evidence Annexure-02. If this happend I and my family back in Sri Lanka would have to suffer significant harm, upon my return to home country. Really speaking I have had an involvement with LTTE terrorists when I was working in Sri Lankan Northern Province. There I supplied oil to LTTE and this deed was known to Sri Lankan government. So I plead you goodself to allow me one more chance to give evidence. I ask forgiveness for my mistake, and lack of knowledge. I am confidendent if I am given an opportunity, I have a valid reasons to meet the refugee criterion and meet the protections obligations. So dear sir/madam I kindly request you to allow me to submit information. [Please find migration + Refuge Division, Case No – 1407308 as Document “A”]

8. Prior to the hearing, the applicant was given the opportunity to file further affidavit evidence and an amended application and submissions.  The applicant filed affidavit evidence and in the affidavit purported to identify new grounds for an amended application. 

9. The affidavit referred to an amended application and statement.  The Court clarified with the applicant that he wished to have treated the statement annexed to the affidavit as being the grounds in support of his application for relief to the Court. No other amended application was filed.  At the commencement of the hearing, the Court explained to the applicant that this was a hearing to determine whether the Court should extend time for the filing of the applicant’s application. 

10. The Court explained that under s.477 of the Migration Act 1958, the Court had to be satisfied that there is an adequate explanation for the delay and, secondly, that the merits of the matter identified a sufficiently arguable case.  The Court explained that the sufficiently arguable case had to be one in which the Tribunal’s decision was affected by a relevant legal error, and the Court explained that the relevant legal error had to be one in which the Tribunal’s decision could be said to be unlawful or unfair. 

11. The Court explained further that to be a relevant legal error, the Tribunal had to have exceeded its statutory powers or denied the applicant procedural fairness.  The Court explained that if satisfied there was an arguable case of jurisdictional error, the Court would extend time in relation to the applicant’s application.  The Court explained that if not satisfied that there was a reasonably arguable error, the application for an extension of time would be dismissed.  The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

12. The Court explained to the applicant that it would have identified the evidence and then hear submissions from the applicant and then hear submission from the first respondent and then hear submissions from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing.  From the bar table, the applicant maintained that he just wanted one more chance and he wanted to be able to explain his true story.  The applicant said that he would definitely be killed if he went back and that the CID were looking for him. 

13. The applicant said there was no guarantee for his life if he returned.  The Court again explained to the applicant that it had to consider whether the Tribunal’s decision was unlawful or unfair.  The applicant submitted that he did not wish to take issue with what was done by the Tribunal.  Nothing said by the applicant from the bar table identified any arguable jurisdictional error in relation to the decision of the Tribunal. 

14. The applicant was also asked for his explanation in relation to the delay.  That delay appears to be due to the applicant having pursued ministerial intervention before filing for relief in this Court.  The first respondent submitted that this Court could not engage in fresh findings of fact in relation to the applicant’s claims.  The first respondent submitted that this Court had no power to engage in a merits review on the new material raised by the applicant.

15. The first respondent submitted that there was nothing in the statement annexed to the applicant’s affidavit that identified any jurisdictional error or arguable jurisdictional error by the Tribunal and that in substance it was an invitation to engage in an impermissible merits review.  The first respondent submitted that there was nothing in the application that identified any jurisdictional error or arguable jurisdictional error and that it again was inviting an impermissible merits review. 

16. I accept the first respondent’s submissions.  The grounds in the application do not identify any arguable jurisdictional error by the Tribunal.  It is apparent from the court book that the Tribunal complied with the statutory obligations and provided the applicant a genuine hearing, and indeed, in the present case, the Tribunal gave the applicant the benefit of a further hearing date in circumstances where the applicant had failed to attend on the first occasion. 

17. It is also clear that the applicant knew from the decision of the delegate that he did not meet the criteria on the delegate’s findings, to be granted a protection visa.  The Tribunal’s reasons are orthodox. There is no unfairness or excess of statutory power apparent on the face of the Tribunal’s reasons.

18. Nothing said in the application identified any basis upon which there could be said to be an arguable jurisdictional error by the Tribunal.  More importantly, the Tribunal cannot be said to have engaged in a jurisdictional error in respect of material or information that was not before it.  In substance, the applicant asserts that he, for misconceived reasons, did not tell the Tribunal the truth and now wanted to do so.  There is no error by the Tribunal in not determining a claim or information not advanced before it.

19. The applicant’s request for one more chance assumes that this Court has some power to exercise a compassionate jurisdiction based on the merits. This Court has no power to provide the applicant with one more chance for compassionate reasons. The only power this Court has is to evaluate whether or not an extension of time should be granted under s.477 of the Migration Act 1958, and that requires the Court to be satisfied that there is an adequate explanation for the delay and a sufficiently arguable ground of jurisdictional error to warrant an extension of time in the interests of the administration of justice.

20. Pursuing ministerial intervention is not a satisfactory explanation for the delay.  The delay in the present case was in excess of three months.  On that ground alone, the Court would be minded to dismiss the application for an extension of time.  However, it is appropriate to take into account the merits of the application. 

21. In that regard, the application fails to identify any arguable ground of jurisdictional error.  The amended grounds, being the statement by the applicant annexed to his affidavit, summarise facts and circumstances not before the Tribunal and do not identify any arguable case of jurisdictional error.  The merits of the application do not warrant an extension of time in the interests of the administration of justice.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 June 2016