CUC16 v Minister for Immigration

[2017] FCCA 753

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUC16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 753

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) visa – whether an extension of time is warranted in the interests of the administration of justice – no satisfactory explanation for the delay in the commencement of proceedings – the Tribunal complied with its statutory obligations – the adverse credibility findings made by the Tribunal cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – application for an extension of time under s.477 is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 476, 477

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: CUC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2621 of 2016

Judgment of: Judge Street

Hearing date: 18 April 2017

Date of Last Submission: 18 April 2017

Delivered at: Sydney

Delivered on: 18 April 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr R White
Mills Oakley Lawyers

ORDERS

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

2. The Applicant pay the First Respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2621 of 2016

CUC16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) with respect to a decision of the Administrative Appals Tribunal (“the Tribunal”) made on 11 August 2016 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant obtained a tourist visa and arrived in Australia on a subclass FA 600 tourist visa on 24 August 2013. On 30 August 2013, the applicant lodged an application for a protection visa. 

The delegate

1. Before the delegate, the applicant claimed to fear harm as a result of running a restaurant in Colombo catering for Muslim customers. The applicant claimed to fear harm from Buddhist extremists who were supported by the government and asked the applicant to stop displaying the Halal certificate which the applicant refused to do. The applicant claimed if he returned to Sri Lanka he would be killed or physically harmed by pro-government Buddhists extremists on account of his display of the Halal certificate. The applicant also claimed to be a member of the Muslim Rights Organisation and claimed that he took part in two rallies in 2013. The applicant alleged that the government is now looking for him and fears persecution from the government on account of his imputed political opinion and his opposition to the government of Sri Lanka’s human rights abuses against Muslims.

2. The applicant is a Tamil and also a Muslim. The delegate made adverse credibility findings in relation to the applicant and did not accept the documents provided in support of the alleged protests with the Muslim Rights Organisation. The delegate took into account the fact that the applicant was able to depart Sri Lanka without difficulties as an indication that he was of no interest to the government of Sri Lanka.

3. The delegate was not satisfied that there was a real chance the applicant will come to the adverse interest of the government of Sri Lanka in the reasonable foreseeable future if he returns to Sri Lanka. The delegate was not satisfied there is a real chance of the applicant being persecuted for a Refugees Convention reason. 

4. The delegate found the applicant’s fear of persecution as defined under the Refugees Convention was not well-founded. The delegate found that the applicant was not a person in respect of whom Australia had protection obligations under s.36(a) of the Act.

5. The delegate 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 that there is a real risk the applicant will suffer significant harm. The delegate found the applicant was not a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act.

The Tribunal

1. On 17 November 2014, the applicant filed an application for review. The applicant was invited to attend a hearing on 16 June 2016, which was adjourned until 9 August 2016. The applicant attended on those dates to give evidence and present arguments.

2. Further material was provided by the applicant to the Tribunal. The Tribunal identified the relevant law and set out the applicant’s claims and evidence. The Tribunal also identified the additional documents provided by the applicant prior to the hearing on 15 June 2016, as well as the documents provided under the submission to the Department dated 16 April 2014.

3. The Tribunal summarised the applicant’s further statutory declaration dated 14 June 2016 and the other documents provided by the applicant. This included a letter from a lawyer, Mr Marsook, which had previously been provided to the Department. The Tribunal was also provided with a further letter provided by the lawyer dated October 2013 which had not previously been provided to the Department. 

4. The Tribunal summarised what occurred at the hearings on 16 June 2016 and 9 August 2016. Mr McMillan, the applicant’s supervisor, attended the hearing on 16 June 2016 and gave evidence in relation to the applicant’s diligent application to his work. The witness asked whether he could remain and the Tribunal identified that he was not a lawyer and declined that request. However, on 9 August 2016 to which the matter was adjourned, a request was made for Mr McMillan to be allowed to remain as a support person, and the Tribunal agreed to that request. 

5. During the hearing, the applicant invited the Tribunal to contact the lawyer in Sri Lanka. The Tribunal identified reasons as to why it would not take that course, including difficulty in identifying the person and noting that two letters had been provided which the Tribunal dealt with in its reasons. 

6. The applicant informed the Tribunal he was seeking protection on the basis of his Muslim religion and on the basis of an imputed political opinion because of his involvement with the Muslim Rights Organisation. The Tribunal also explored with the applicant concerns raised in his statutory declaration in respect of a white van, in respect of people looking for the applicant. The applicant claimed because of his involvement in the Muslim Rights Organisation the government was looking for him.  The applicant also alleged that he had gone into hiding. The applicant identified having made several trips to India because of his daughter’s medical condition. The applicant acknowledged that he left Sri Lanka without difficulty and legally.

Consideration of the applicant’s claims

1. The Tribunal explored with the applicant its concerns about the summons document that was provided in support of the applicant’s claims. The applicant gave evidence that he believed a warrant had been issued for the applicant’s arrest. The Tribunal also referred to the applicant’s psychological assessment report which alleged mental health issues.  The Tribunal summarised the issues raised by the Tribunal with the applicant in relation to credibility and DFAT country information.

2. The Tribunal also noted that the letter from the lawyer in October 2013 did not refer to the applicant’s court case and did not indicate any warrant had been issued for the applicant’s arrest. The Tribunal was not satisfied on the applicant’s claims, that he had a well-founded fear of persecution if he returned to Sri Lanka. 

3. The Tribunal referred to the applicant’s claimed fear of harm on the basis of his Tamil ethnicity and his Muslim religion. The Tribunal found the applicant did not have a well-founded fear of persecution if he returned to Sri Lanka now or in the reasonably foreseeable future on the basis of his Tamil ethnicity.

4. The Tribunal did not accept the credibility of some aspects of the applicant’s claims and did not consider the applicant to be a reliable and credible witness in relation to some aspects of his claims. The Tribunal identified the inconsistencies in relation to the applicant’s evidence. The Tribunal also referred to the applicant’s alleged threatening calls in relation to the Halal certificate being displayed in the restaurant. The Tribunal did not accept that the applicant’s life was threatened as a result of calls due to his display of the Halal certificate.

5. The Tribunal did not accept that the applicant’s home was attacked as claimed by the applicant. The Tribunal did not accept that the inconsistency in the applicant’s claims was due to psychological conditions from which the applicant suffers and found that the inconsistencies were not caused by any psychological condition. The Tribunal did not accept that the applicant faced any court proceedings as a result of his involvement with protests and activities in 2013. The Tribunal did not accept that the applicant was of any interest to the Sri Lankan authorities or the Boda Bala Sena and did not accept that people were looking for the applicant in Sri Lanka in September or October 2013 because of his claims in relation to the Muslim faith and his political opinion. 

6. In relation to the applicant’s claimed fear of harm on the basis of his religion and actual political opinion, the Tribunal found the applicant did not have a well-founded fear of harm if he returns to Sri Lanka on the basis of those claims now or in the reasonably foreseeable future.

7. The Tribunal did not accept that the applicant faces a real chance of serious harm for a convention based reason if he returns to Sri Lanka either now or in the reasonably foreseeable future. The Tribunal did not accept that the applicant is a refugee as claimed on the basis of the evidence and material and information before the Tribunal.

8. The Tribunal 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 is a real risk the applicant would be subjected to any form of harm that would result in an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for reasons specified in paragraphs (a) to (e) of the definition of torture in s.5(1) of the Act.

9. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention pursuant to s.36(2)(a) of the Act. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection under s.36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The applicant commenced these proceedings for judicial review on 27 September 2016, 12 days after the 35 day period under s.477 of the Act. At the commencement of the hearing, the Court explained to the applicant that this was an interlocutory hearing to determine whether the Court should make an order extending time under s.477 of the Act. The Court explained that in general this required the Court to consider whether there was a reasonable explanation for the delay, whether there was any prejudice to the first respondent and the merits in the application by the applicant.

2. The Court identified that there was no suggestion of any prejudice to the first respondent and that accordingly, the real issues were whether the applicant had a reasonable explanation for the delay in commencement of the proceedings and whether the applicant had a reasonable argument that the Tribunal’s decision was affected by relevant legal error. The Court explained to the applicant that legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether there was a reasonable argument that the Tribunal’s decision was unlawful or a reasonable argument that the Tribunal’s decision was unfair. 

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the first respondent and then hear submissions from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing as explained by the Court from the bar table. 

Consideration of adjournment application

1. The applicant sought to explain the circumstances in which his lawyer had ceased acting for him and the timing in relation to receipt of the court book and the submissions. The applicant requested an adjournment of the proceedings. No earlier notice of an adjournment application had been given to the first respondent. The adjournment was opposed by the first respondent. The Court inquired of the applicant what would be the utility of the granting of an adjournment, and the applicant referred to the fact that he was working and that he had been unsuccessful in obtaining a lawyer to act for him to date. 

2. Nothing said by the applicant from the bar table identified any basis upon which the Court could be satisfied that an adjournment would be of utility. Further, the Court is satisfied that the applicant received the court book and the submissions of the first respondent and had a reasonable opportunity to respond to the same. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice.

The applicant’s submissions from the bar table

1. The applicant put detailed submissions from the bar table seeking to take the Court to concerns by the applicant. The first concern raised by the applicant was in relation to the employer witness who had not been allowed to stay on the first occasion but was allowed to stay on the second occasion. The Court informed the applicant that on the first occasion there was no request for the relevant witness to remain as a support person. When a request was made, the Tribunal permitted that person to remain. This does not identify arguable jurisdictional error.

2. The applicant took issue with the Tribunal’s reference to the lawyer’s letter of October 2013 and the use made of that letter by the Tribunal in respect of the absence of any mention of a warrant. That was a matter for the Tribunal to determine and does not identify any arguable jurisdictional error. 

3. The applicant also referred to the request made to the Tribunal to call the lawyer. That was a matter for the Tribunal to determine and the Tribunal provided cogent reasons for its decision not to contact the lawyer. These reasons included the fact that letters from the lawyer had been tendered and the Tribunal took into account the contents of those letters in its reasons. No arguable jurisdictional error is identified by reference to the failure to require the lawyer to give evidence by telephone. 

4. The applicant also referred to nuisance calls in relation to his restaurant and white vans. These were matters going to the merit of the applicant’s claims and do not identify any arguable case of jurisdictional error. 

5. The grounds of the application are as follows:-

   1. The Tribunal erred in asking itself the wrong question.

   Particulars

   (a) The Tribunal only considered what the lawyer's letter dated October 2013 did not say regarding whether there was court proceedings or a warrant for the applicant's arrest, instead of the information it did provide ;

   (b) The Tribunal found that if the applicant was a person of interest to the Sri Lanka authorities he would have had difficulty in leaving Sri Lanka to travel to Australia;

   (c) By considering irrelevant considerations and outcomes instead of processes experienced by the applicant, the Tribunal failed to assessing whether the applicant would face serious or significant harm upon return to Sri Lanka;

   2. The Tribunal erred in asking itself the wrong question and making irrelevant considerations.

   Particulars

   (a) In [86] the Tribunal consider DFAT country information in relation to:

   i. Political representation of minorities in the Sri Lankan parliament and that it is broadly proportional to the overall population;

   ii. The Tribunal found that this information did not indicate of suggest that the applicant would be at risk if he returned to Sri Lankan on the basis of his activities with the Muslim Rights Organisation when he was in Sri Lanka;

   iii. Information on political representation of minority groups is the wrong question and irrelevant to assessing whether the applicant will suffer serious or significant harm due to advocating equal rights for Muslim Tamil-speakers in Sri Lanka.

Consideration

Ground 1

1. I accept the submissions of the first respondent that it is apparent from the Tribunal’s reasons that he took into account the lawyer’s letter dated October 2013. Ground 1 fails to identify any proper basis upon which it could be said that there is arguable jurisdictional error in respect of the Tribunal asking the wrong question. It was open to the Tribunal to take into account that the applicant was able to depart Sri Lanka legally. The Tribunal’s reasons reflect an orthodox approach to the claims and evidence of the applicant.

2. On the face of the material before the Court, the Tribunal complied with its statutory obligations. On the face of the material before the Court, it is not apparent that there is any arguable case for a denial of procedural fairness to the applicant in the conduct of the review. It is not apparent from the Tribunal’s reasons that there was any irrelevant consideration taken into account. It was a matter for the Tribunal to determine the applicant’s credit and the Tribunal identified reasons in support of the adverse credibility findings that cannot be said to lack an evident and intelligible justification. Ground 1 fails to identify any arguable jurisdictional error.

Ground 2  

1. In relation to ground 2, it was a matter for the Tribunal to determine what weight to give the DFAT country information. The taking into account of the DFAT country information cannot be said to be an irrelevant consideration. Ground 2 fails to identify any arguable jurisdictional error. 

Consideration of the applicant’s explanation for the delay and the merits

1. The applicant’s explanation for the delay included steps taken to seek Ministerial Intervention. Ministerial Intervention ordinarily reflects a deliberate choice in respect of the avenues open to the applicant. I am not satisfied that the applicant has a satisfactory explanation for the delay in commencement of the proceedings. 

2. The more material issue under s.477 of the Act are the merits of the application. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. The application fails to disclose any arguable jurisdictional error. Nothing said by the applicant from the bar table identified any arguable jurisdictional error.

3. I am not satisfied that the merits warrant an extension of time under s.477 of the Act. The Court is not satisfied that it is necessary in the interests of the administration of justice to make an order under s.477 of the Migration Act 1958 (Cth).

Conclusion 

1. In the present case, the application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 4 May 2017