CTF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 144
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CTF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 144
File number(s): MLG 2041 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 11 March 2022 Catchwords: MIGRATION – Application for an extension of time to seek judicial review of a decision of the Immigration Assessment Authority – delay excessive – grounds of review unparticularised – application dismissed Legislation: Migration Act 1958 (Cth) ss 473CB, 473DC, 477 Cases cited: BBU15 v Minister for Home Affairs [2019] FCA 1324
Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67
CXK17 v Judge of the Federal Circuit Court of Australia [2019] FCA 2089
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475; [2020] FCAFC 127
EMT18 v Minister for Home Affairs [2019] FCA 1501
Minister for Immigration and Border Protection v Stretton (2016) 329 ALR 491; [2016] FCAFC 11
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
MZARG v Minister for Immigration and Border Protection [2018] FCA 624
SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252; [2013] FCA 1284
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Vella v Minister for Immigration and Border Protection (2015) 326 ALR 391; [2015] HCA 42
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of last submission/s: 22 February 2022 Date of hearing: 22 February 2022 Place: Melbourne Applicant: In person Counsel for First Respondent Mr V Murano Solicitor for the First Respondent:
Australian Government Solicitor
ORDERS
MLG 2041 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CTF21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE SYMONS
DATE OF ORDER:
11 March 2022
THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time filed on 16 August 2021 is dismissed.
2.The applicant pay the first respondent’s costs and disbursement of and incidental to the application, fixed in the sum of $3,930.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS
INTRODUCTION
By an application filed on 16 August 2021, the applicant seeks an extension of time to make an application for judicial review of a decision of the second respondent (“the Authority”) which was made on 6 June 2018, affirming a decision of the first respondent (“the Minister”) to refuse a grant to the applicant of a Safe Haven Enterprise (Subclass 790) visa (“the visa”). The Minister opposes the application. The Authority enters a submitting appearance and has not participated in the proceeding.
Pursuant to s 477(1) of the Migration Act 1958 (Cth) (“the Act”), any application to this Court for a review of the Authority’s decision was to be made within 35 days of the date of that decision, namely, on or by 11 July 2018.
Accordingly, the application to this Court is 1,129 days (slightly more than three years) out of time from the last date to file.
BACKGROUND
The applicant is a 30 year old citizen of Sri Lanka who arrived in Australia by boat on 24 November 2012 and who, by reason of the timing and means of his travel to Australia, assumed the legal status of an unauthorised maritime arrival.
On 26 April 2016, the applicant applied for the visa with the assistance of a migration agent (CB 34-125). His claims for protection were set out in a statutory declaration lodged with the visa application (CB 73-81). In the statutory declaration, the applicant explained that he had not told everything that happened to him in Sri Lanka in his entry interview. The applicant described himself as an ethnic Tamil and a Hindu and claimed that in February 2009, at the age of 17, the Liberation Tigers of Tamil Eelam (“LTTE”) had forcibly recruited him and he had been forced to fight with the LTTE until the end of the war in May 2009. The applicant described how the LTTE assigned him a name and a fighting division number and that on each occasion that he attempted to escape, the LTTE would capture him and return him to camp. The applicant eventually surrendered to the Sri Lankan Army (“SLA”) and although there was some suspicion around his identify, he was placed in a camp as a civilian. While at the camp, the applicant learnt that his father had been killed in a bomb blast in March 2009. When it became apparent to the applicant that the SLA was rounding up people who had been in the LTTE, he bribed his way out of the camp and made his way via Colombo to Negombo. On 14 July 2009 (after one and a half months in Negombo), the applicant fled Sri Lanka and went to India. It was difficult for the applicant to survive in India and he returned to Sri Lanka on 10 June 2012 after paying bribes in both countries. On return to Sri Lanka the applicant was afraid that he would be targeted and tortured and would disappear because the SLA was still present and targeting Tamils who they had suspected of supporting the LTTE. The applicant described how two of his uncles had been abducted by a white van and killed because their relatives were from a Tamil area. The applicant decided to flee and departed Sri Lanka by boat on 10 November 2012.
The applicant fears that upon any return to Sri Lanka, the CID and the SLA would arrest, beat, torture or kill him because they believe he was with the LTTE. He is also fearful of being deported from Australia as a failed Tamil asylum seeker because the Sri Lankan government will have all the details about him and will harm him because they suspect the applicant to be aligned with the LTTE.
On 20 December 2016, the applicant participated in an interview with the delegate and on 22 December 2016, the applicant’s representative provided written submissions to the delegate (CB 148-162).
On 9 August 2017, the delegate refused the visa application (CB 164-182). The delegate did not accept that the applicant had been forcibly recruited by the LTTE nor that he served under them militarily. The delegate was also not satisfied that the applicant would be imputed with an association with the LTTE by reason of his Tamil ethnicity or that he would be at risk of relevant harm on account of his status as a failed asylum seeker from the West who had departed Sri Lanka illegally. This lack of satisfaction was principally formed having regard to country information that was before the delegate.
On 11 August 2017, the applicant’s matter was referred to the Authority (CB 184-185).
On 29 August 2017, the applicant’s representative provided a submission to the Authority (“IAA submission”) which responded to adverse findings made by the delegate and sought to place before the Authority new country information concerning reports of torture and mistreatment by security forces in Sri Lanka.
THE DECISION OF THE AUTHORITY
On 6 June 2018, the Authority affirmed the delegate’s decision (CB 197-225). In making its decision, the Authority:
(a)identified the information before it as comprising the material referred by the Secretary under s 473CB of the Act and the IAA submission, to the extent that it sought to address findings made by the delegate, which the Authority characterised as “argument” rather than “new information” (CB 198 [3]-[4]);
(a)was not satisfied that the country information referred to in the IAA submission, which it considered to be “new information” and which pre-dated the decision of the delegate could not have been provided to the Minister’s delegate before the delegate made a decision and was not satisfied that the country information was personal information or that there were exceptional circumstances to justify its consideration (CB 198-199 [5]);
(b)accepted that the applicant was a Sri Lankan citizen of Tamil ethnicity and Hindu religion who, having been born in Galle, grew up in Vaddakkachchi town in Kilinochchi district, which was an LTTE controlled area in the Northern Province of Sri Lanka (CB 201 [9]-[10]);
(c)accepted as credible that the applicant and his family were displaced from their home in Vaddakkachchi and finally settled in Putumatalan when the war intensified in the final few months of the war (CB 202 [11]);
(d)was not satisfied that the applicant was forcibly recruited by the LTTE, or that he was trained to fight or that he was engaged in any military capacity for the LTTE (CB 203 [14]). This finding reflected the Authority’s concern that there was a discrepancy that was not satisfactorily explained between the applicant’s claims at entry interview and his subsequent elaboration of LTTE involvement. The finding also reflected various concerns that the Authority identified with different aspects of the applicant’s account which the Authority considered to be “very basic” and “implausible”, including having regard to country information concerning the treatment of LTTE members at the end of the civil war (CB 203-208 [15]-[24]). The Authority was fortified in its conclusion and rejection of these claims having regard to the fact that the applicant, after escaping from the IDP camp, departed Sri Lanka in July 2009 and subsequently returned about three years later in June 2012, without incident, having travelled on his own passport and having gone through the airport checking process at Colombo airport. The Authority did not consider it plausible that the applicant would have been able to obtain a passport or leave the airport in Sri Lanka at that time if he was a person of any adverse interest to authorities on account of any LTTE connections (CB 209 [26]);
(e)likewise, the Authority did not consider it plausible that the applicant would have been able to avoid adverse attention upon return to Sri Lanka from India simply by paying a bribe, including because country information indicated that former LTTE suspects were being targeted at that time upon return to Sri Lanka. The Authority was not satisfied that the applicant was of any adverse interest to authorities upon his return to Sri Lanka in 2012 on account of any suspected LTTE connections (CB 210 [28]) and did not accept that the CID or any Sri Lankan authorities came to his house in search of him at any time thereafter (CB 212 [32]);
(f)referred to country information from DFAT and the UK Home Office which was to the effect that Tamil ethnicity of itself no longer imputes LTTE membership or a pro-LTTE opinion and no longer (of itself) warrants international protection (CB 212-213 [34]-[35]). The Authority also referred to country information that indicated that the Sri Lankan authorities were now more concerned with identifying people who were understood to constitute a threat to the present, unitary state of Sri Lanka because of their role in relation to post-conflict Tamil separatism or resurgence of hostilities. The Authority was not satisfied that the applicant did have or would be perceived to have, this profile (CB 213 [36]);
(g)referred extensively to country information concerning the treatment by Sri Lankan authorities of Sri Lankan citizens including, especially, persons of Tamil ethnicity. The Authority noted that this information indicated that the overall situation for Tamils in Sri Lanka had improved since the election of President Sirisena in January 2015 (CB 215 [42]). The Authority was not satisfied that the applicant faced a real chance of serious harm now or in the reasonably foreseeable future on the basis of his Tamil ethnicity, or because of his residence in a former LTTE controlled area in the North, or because of his male gender or his age as a young able-bodied Tamil male, or because of his experiences in Sri Lanka as the civil war was ending, or because he had fled to and lived in India after the war ended or any combination of these factors (CB 216 [46]). The Authority was also not satisfied that there was a real chance of harm to the applicant arising because he was returned to Sri Lanka from Australia which is perceived to be a wealthy country. The Authority noted that there was no country information at all that credibly identified any risk to returnees on the basis of a perception of wealth (CB 216-217 [47]);
(h)in respect of the applicant returning to Sri Lanka as a failed asylum seeker, the Authority was not satisfied that he had “a profile that would place him at risk of mistreatment upon return to Sri Lanka or that he [was] a person of any adverse interest to authorities” including because the applicant did not have a profile as posing a credible and ongoing threat to national security and because the applicant had previously returned to Sri Lanka in 2012 “without any adverse attention from authorities” (CB 218, [51], [52], [55]);
(i)in respect of the applicant having departed Sri Lanka illegally, the Authority was satisfied that the applicant would not be treated differently to any other returnee with no adverse profile (CB 219 [59]) and was not satisfied that the totality of treatment that the applicant may experience on return, including being questioned and detained for several hours at the airport, then potentially detained on remand for up to a few days in overcrowded and unsanitary conditions, and having to pay a fine, would amount to serious harm (CB 220 [62]). The Authority found, in any event, that any such treatment would be carried out pursuant to a law of general application (CB 220 [63]);
(j)in the context of its complementary protection assessment, the Authority referred to its earlier findings and found, on the basis that “real chance” and “real risk” involved the same standard, that it was not satisfied there was a real risk of significant harm to the applicant on the basis of his Tamil ethnicity, his experiences in Sri Lanka as the civil war was ending, his having fled to and lived in India, or because he would be a returning asylum seeker (CB 221 [68]). The Authority was not satisfied that there was a real risk that the applicant would be subjected to mistreatment or torture during any possible brief period in detention on return to Sri Lanka or that there was an intention to inflict pain or suffering, severe pain or suffering or to cause extreme humiliation through the imposition of any questioning, brief detention or fine. The Authority also considered that there was nothing before it to indicate that the applicant had any particular personal vulnerability that would make any brief detention in prison on return such that it would constitute cruel or inhuman treatment, or degrading treatment or punishment (CB 221 [70]).
PROCEEDINGS IN THIS COURT
On 3 November 2021, a Registrar of this Court made procedural orders including that the applicant file and serve, 28 days before the hearing date, any amended application with proper particulars of the grounds of application and written submissions. Consistent with the procedural orders, the Minister, on 19 November 2021, filed a court book, and on 8 February 2022, filed written submissions. The applicant has not produced any further material and therefore relies upon his application and affidavit filed on 13 August 2021.
The applicant appeared at the hearing by audio-video link. He engaged with the Court with the assistance of an interpreter in the Tamil language. At the outset of the hearing I confirmed with the applicant that he had received both a copy of the court book and the Minister’s written submissions. However, it was apparent that the applicant had not acquainted himself with either document so that when it came time for the Minister’s counsel, Mr Murano, to address the Court orally, I asked him to summarise the Minister’s submissions, which he did for the benefit of the applicant.
In his application filed on 13 August 2021, the applicant identifies the following three grounds for an extension of time:
1.It has been difficult for me to manage legal processes from prison and immigration detention because I have not had a lawyer.
2.My previous representative did not advise me about my legal rights in relation to my protection visa appeal.
3.I risk being deported to Sri Lanka where I fear persecution.
In his affidavit affirmed on 12 August 2021, the applicant provides the following grounds [reproduced in full] in support of the extension of time.
4.I am seeking to bring this application approximately 24 (sic) months out of time. My reasons are that:
a. Despite my keen interest in pursuing this matter, my circumstances prevented me from managing my matters. I fear returning home and am committed to this process.
b. I was in prison when the IAA made its decision and do not recall ever being notified.
c. I have not had a legal representative for several years and when I contacted my previous representative, they told me they could not help me with the protection visa without paying them extra fees. I had no income and no money left so I was unable to proceed.
d. I first discovered that I was rejected by the IAA on 28 April 2021 when someone in immigration detention provided me with the number for Victoria Legal Aid. A lawyer at VLA explained how I could contact the IAA to request a status update. The IAA staff spoke to me slowly and emailed me the outcome. I showed this email to others in the center because my English is not good. It was here that I discovered the IAA rejected me. I was extremely disappointed.
e. I have limited English and rely on free legal services. I will provide more reasons when I have an opportunity.
The applicant also raises two grounds of review for determination in the event that the extension of time is granted, which are:
1.The IAAs decision was legally unreasonable.
2.The decision of the IAA was vitiated by illogical and irrational reasoning.
Extension of Time
It is settled that despite the lack of legislative prescription in relation to how the interests of the administration of justice might be satisfied for the purpose of s 477(2) of the Act, the factors which generally inform the exercise of the discretion to extend time include the following:
(a)the length of delay and whether there has been a reasonable and adequate explanation for it: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [47] (citing SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [46]-[48]);
(b)whether there is any prejudice to the Minister; and
(c)whether the applicant’s substantive grounds seeking judicial review justify the extension of time, noting that “[w]hether that standard of veracity is described as being ‘arguable’, ‘reasonably arguable’, or ‘sufficiently arguable’ or having ‘reasonable prospects of success’ or some other description, the hurdle is low”: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 (“DHX17”) at [76]. The examination of the substantive grounds of review should not go beyond a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 (“MZABP”) at [62]. Further, it will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success: MZABP at [62].
However, notwithstanding these factors have been commonly identified and applied as guiding the exercise of the statutory discretion, they do not possess the character of mandatory relevant considerations. The Court is required in each case to ascertain whether it is in the interests of justice to extend time for the making of the review application: DHX17 at [65].
Explanation for delay
The Minister characterises the delay in filing of 1129 days as “excessive” and submits that the length of delay requires something “very persuasive” to justify a grant of leave (referring to Vella v Minister for Immigration and Border Protection [2015] HCA 42 at [3] (Gageler J) and BBU15 v Minister for Home Affairs [2019] FCA 1324 at [7] (Jackson J)).
The Minister summarises the applicant’s explanation for the delay as comprising essentially three elements: (1) he was in prison when the Authority made its decision and does not remember ever being notified; (2) he contacted his previous representative but could not engage them as he has no income or money; and (3) he first discovered the Authority had made its decision on 28 April 2021 and lodged his application on 13 August 2021.
The Minister submits that “similar explanations” to those given by the applicant have been held in other cases not to constitute a satisfactory reason for such a delay (referring to EMT18 v Minister for Home Affairs [2019] FCA 1501 at [48]-[50] (Rares J) and CXK17 v Judge of the Federal Circuit Court of Australia [2019] FCA 2089 at [21] (Besanko J). The Minister also submits that even accepting the applicant did first receive the decision of the Authority on 28 April 2021, it still took him a further three months to file the application, which period of time was not explained.
I accept that on any view, a delay of in excess of three years, in the context of a statutory scheme that requires applications for judicial review to be filed within 35 days of the date of decision, is excessive. I further accept that a delay of this magnitude invites greater scrutiny and requires a persuasive explanation. The explanation furnished by the applicant does not rise to this threshold including because it does not sufficiently distinguish the applicant’s case from those of many other applicants who approach this Court for relief and because, taking the applicant’s case at its highest – namely, that he first became aware of the adverse decision of the Authority on 28 April 2021 - he has provided no explanation as to why he delayed a further three months to file his application. While I have no reason to doubt that the applicant was disappointed in the outcome of his visa application (and review), his failure to diligently prosecute a judicial review application (once appraised of the outcome and against the background of a very significant delay) operates against the interests of the administration of justice.
I consider that this factor weighs against the extension being granted.
Prejudice
In relation to prejudice, the Minister accepts that he will not suffer any direct prejudice that could not be cured by a favourable costs order. The Minister however identifies that there is a public interest in the finality of administrative decision-making which interest is exaggerated in circumstances where there has been a lengthy delay in the case (referring to Commonwealth of Australia (Department of Defence); Ex parte Marks [2000] HCA 67 at [16]-[17] (McHugh J).
I weigh prejudice as being a neutral factor in the exercise of my discretion.
Merit of proposed grounds
On the question of merit, the Minister submits that neither ground of judicial review identified by the applicant is sufficiently arguable, even on a reasonably impressionistic level. This argument operates at two levels. At the first level, the Minister submits that because neither ground is particularised and amounts to no more than a mere assertion, it may be dismissed on that basis (referring to MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25] (McKerracher J). At the next level, the Minister submits that even on a closer (yet still impressionistic) analysis, both of the applicant’s proposed grounds must fail when regard is had to the Authority’s reasons.
In relation to ground one, which alleges that the decision of the Authority was legally unreasonable, the Minister submits that this ground must fail in circumstances where the decision of the Authority was not “sufficiently lacking rational foundation, or an evident or intelligible justification, or…plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes…” (referring to Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11] (Allsop CJ, Griffiths and Wigney JJ agreeing).
In relation to ground two, which alleges that the decision of the Authority was illogical and irrational, the Minister submits that this ground must fail in circumstances where the findings recorded by the Authority, and its ultimate decision, were plainly cogent and based on probative evidence (such as country information that was before the Authority).
I gave the applicant two opportunities at hearing to explain what he considered to be wrong with the decision made, or process adopted, by the Authority. The applicant raised matters that went to the merits of his case and/or his present situation in Australia. The Minister submitted that these matters did not further advance or explain the applicant’s grounds of judicial review and I accept this to be so.
In these circumstances, where the applicant’s complaints were unparticularised in writing and remained so after opportunities were given during the hearing to supply meaningful detail, a conclusion that the applicant’s grounds for review, on an impressionistic evaluation, do not achieve a threshold of being arguable, is irresistible.
Further, having reviewed the decision of the Authority I am unable to discern any matter that, on an impressionistic evaluation, might give rise to any arguable ground of review.
The Authority engaged in a careful and comprehensive evaluation of the claims advanced by the applicant and dismissed them for reasons that were logical and based on concerns that the Authority identified with various aspects of the applicant’s claims, especially as they involved his association with the LTTE. The Authority had regard to country information that was capable of informing this assessment and again, found that the narrative supplied by the applicant, in important respects, did not accord with country information.
The Authority turned its mind to the question of whether the applicant had been both put on notice as to the matters which led the delegate (and the Authority in turn) to reject aspects of his account of events in Sri Lanka and also whether the applicant had been given an adequate opportunity to supply detail about his claimed LTTE involvement. The Authority was satisfied that the applicant’s claims had been comprehensively presented and that the questioning engaged in by the delegate would have alerted the applicant to perceived difficulties with his account (refer CB 208-2019 [25]). In these circumstances, I do not consider that the Authority unreasonably failed to exercise (or consider the exercise) of the discretion in s 473DC(1) of the Act to get any new information it considered may be relevant.
For the foregoing reasons I am satisfied that neither of the grounds of review sought to be raised by the applicant warrant an extension of time. Further, I consider that this is a case where the grounds fall comfortably within the category of having “little or no prospect of success” such that it would not be in the interests of justice to extend time.
I will order, pursuant to s 477(2) of the Act, that the application for an extension of time is dismissed and that the applicant pay the first respondent’s costs of and incidental of this application in a fixed amount.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 11 March 2022
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