CUP16 v Minister for Immigration and Multicultural Affairs
[2025] FCA 177
•11 March 2025
FEDERAL COURT OF AUSTRALIA
CUP16 v Minister for Immigration and Multicultural Affairs [2025] FCA 177
Appeal from: Application for an extension of time to file a notice of appeal: CUP16 v Minister for Immigration [2020] FCCA 2366 File number: NSD 1147 of 2020 Judgment of: BROMWICH J Date of judgment: 11 March 2025 Catchwords: MIGRATION – application for an extension of time to file a notice of appeal – whether proposed notice of appeal has merits – whether it was legally unreasonable, irrational or illogical for the Immigration Assessment Authority to conclude that the nature of the relationship between the applicant and his uncle was unlikely to bring him to the adverse attention of the Sri Lankan government – HELD: application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 5J, 5H(1), 36(2)(a)
Federal Court Rules 2011 (Cth) r 36.03(a)(i)
Cases cited: BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483
CUP16 v Minister for Immigration [2020] FCCA 2366
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 22 Date of hearing: 11 March 2025 Counsel for the Applicant: Mr G Foster Solicitor for the Applicant: Sentil Solicitor Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The second respondent did not appear ORDERS
NSD 1147 of 2020 BETWEEN: CUP16
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
BROMWICH J
DATE OF ORDER:
11 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to Minister for Immigration and Multicultural Affairs.
2.The application for an extension of time dated 13 October 2020 and filed on 19 October 2020 be dismissed.
3.The applicant pay the first respondent’s costs as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
This is an application for an extension of time to file an appeal from a decision of the Federal Circuit Court, now Division 2 of the Federal Circuit and Family Court of Australia: CUP16 v Minister for Immigration [2020] FCCA 2366. The primary judge dismissed an application for judicial review of a decision of the then Immigration Assessment Authority made on 26 September 2019. The Authority affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, the first respondent, to refuse an application for a Safe Haven Enterprise Visa.
Prospective appellants are required to file their notices of appeal with this Court within 28 days of the date on which the judgment was pronounced or the order was made: Federal Court Rules 2011 (Cth) r 36.03(a)(i). The primary judge’s decision was delivered ex tempore on 26 August 2020, and the applicant failed to file his appeal within the time required. The applicant’s application for an extension of time to file the notice of appeal was filed in this Court on 19 October 2020. An affidavit annexing the proposed notice of appeal was filed at the same time. The applicant subsequently provided to this Court amended versions of the proposed notice of appeal on 25 January 2021 and 8 November 2023.
In considering whether an extension of time should be granted, the Court will ordinarily have regard to the length of and reasons for the delay, any prejudice to the respondents its granting would create, and the merits of the proposed appeal: BVG16 v Minister for Immigration and Border Protection [2018] FCA 1483 at [17] (Burley J). The Minister objects to the grant of an extension primarily on the basis that the proposed notice of appeal relied upon lacks merit.
The proposed notices of appeal
The applicant has provided three versions of a proposed notice of appeal to the Court.
In the version dated 13 October 2020 and annexed to his affidavit also dated 13 October 2020 and filed on 19 October 2020, the applicant pressed reliance on the grounds of the amended application before Federal Circuit Court. It further states that the applicant would seek further legal advice, and its filing was for the purpose of maintaining his appeal rights. That amended application is not in the application book, but the ground contained within it is excerpted at [29] of the primary judgment. It contends that the Authority erred in finding that the applicant’s uncle was not a “close relative.” The significance of that finding for the Authority’s review is explained below, in the discussion of the merits of the proposed further amended notice of appeal. I refer to this as the proposed notice of appeal.
In a version received as correspondence by the Court’s Registry on 25 January 2021 and dated 21 January 2021, the applicant contended that the Federal Circuit Court failed to find that the Authority “declined its jurisdiction” to the applicant, and erred in finding the Authority’s decision was not affected by jurisdictional error. No specific such error is identified. This version pressed the ground of the applicant’s amended application before the Federal Circuit Court. I refer to this as the proposed amended notice of appeal.
In a version received as correspondence by the Court’s Registry on 8 November 2023 and dated 7 November 2023, the applicant provides two new grounds of appeal (and deletes the prior grounds in the proposed amended notice of appeal). Those grounds contend that the primary judge erred in:
(1)not accepting that the applicant’s uncle was a close relative of the applicant, which he contends was legally unreasonable (this ground substantially restates the ground before the primary judge, though now directed to alleged error in the primary judgment); and
(2)failing to find or consider that the Authority did not take into account that the applicant had a “family link” to the uncle under “the UNHCR Guidelines”, and that this was a separate basis for claiming protection.
I refer to this as the proposed further amended notice of appeal.
The application for an extension of time
I have decided that the reasons for the lateness in commencing this appeal proceeding are such that, while short of ideal, it would not be an impediment to the grant of an extension of time if there was sufficient merit in the grounds of appeal sought to be advanced. The Minister accepts that no specific prejudice would be caused to him if the application were granted, beyond his general public interest in the finalisation of administrative decisions.
At the hearing I confirmed that the applicant presses the proposed further amended notice of appeal. It is therefore those grounds which I examine to consider their merit.
Merits of the proposed further amended notice of appeal
Ground 1
This ground asserts that the primary judge erred in not accepting that the applicant’s uncle was a close relative, characterising the Authority’s reasons upheld by his Honour as both legally unreasonable and as illogical and irrational, referring to passages of the primary judge’s reasons and of the Authority’s reasons that his Honour assessed.
The Authority was required to consider whether the applicant had a “well-founded fear of persecution” as defined in s 5J of the Migration Act 1958 (Cth), being one of the criteria for refugee status under s 5H(1). That, in turn, was a requirement of a protection visa under s 36(2)(a).
For the purposes of that assessment, the Authority had regard to the United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, dated December 2012 (UNHCR Eligibility Guidelines). Those guidelines relevantly provided at p. 27:
However, previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:
1)Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;
2) Former LTTE combatants or “cadres”;
3)Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);
4)Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
5)LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;
6)Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
(Emphasis added)
The applicant claimed that his uncle was a Chief Policeman in the Liberation Tigers of Tamil Eelam (LTTE), which was accepted for the purposes of the review by the Authority. He claimed he had stayed with his uncle for one month in 2006 as a 14-year-old (but provided no evidence of any further connection), and that he had largely lived in another province of Sri Lanka. The Authority dismissed the contention that the applicant was “closely related” to his uncle for the following reasons (footnotes omitted):
Imputed LTTE connection
…
[21] The applicant claims he is imputed with an association to the LTTE because he is related to his uncle and because he visited his uncle in 2006. The applicant claims the authorities are interested in his uncle because he held a prominent position in the LTTE as a Chief Policeman from 1999. Yet the applicant knew nothing of this when he visited the uncle in 2006. In fact, he claims he didn’t even know for sure that his uncle was in the LTTE until August 2016, when he asked the uncle’s family for evidence on why the authorities might be looking for the uncle. The UNHCR identified in 2012 that persons who are closely related to persons who held senior positions in the LTTE civilian administration, or closely related to former LTTE combatants or supporters, may need protection. I am not convinced on the information before me that the applicant is ‘closely related’, noting also that his only contact with the uncle was the time he spent with his uncle and aunt in 2006, that he had no contact with this uncle after 2006, and that he lived in a different province to his uncle. Significantly there is no claim or evidence before me that anyone in the uncle’s immediate family have been harmed because of the uncle’s role in the LTTE.
[22] I consider the applicant’s claim to be of adverse interest for visiting his uncle in 2006 is farfetched. The applicant was only 14 years old when he spent a month at this uncle’s house. Why a one-off visit for a month by a young person would be known or of interest to the authorities in 2010 is not explained. Were the authorities interested in his uncle, I would expect they would be questioning the uncle’s closer family members and friends and neighbours from Mullaitivu. Not a nephew who hadn’t seen him since 2006 and who lived in another province. Were the authorities looking to interrogate, detain and mistreat relatives of the uncle in order to find him or just because they were related to him, it is not logical they would focus their attention only on the applicant.
[23] The treatment the applicant received in Sri Lanka is not consistent with the claim that he is of adverse interest to the authorities. I accept his claim to have been questioned by the CID and/or SLA once in 2010 and once in 2011, because I accept the country information indicates young Tamil men in previously LTTE controlled areas may be suspected of an association with the LTTE. I note the applicant says he was detained for about 3 hours each time, asked about his uncle, asked whether he himself was in the LTTE, and then released. He does not claim to have been seriously mistreated on either occasion, but does describe a frightening experience when there may have been some rough treatment and implied threats. The applicant’s treatment is quite different to the way those suspected of LTTE involvement or relatives of high ranking LTTE members were actually treated. Many LTTE members, suspects and relatives were detained for significant periods in rehabilitation camps and suffered torture and sexual violence. DFAT says there are credible reports of torture carried out by Sri Lankan security forces in the aftermath of the civil war, on civilians detained in relation to suspected LTTE connections. Fortunately the applicant suffered no such harm, and his short period of detention, just a few hours, suggests he was not of adverse interest.
[24] The applicant claims he was in hiding after these incidents, yet he remained in Trincomalee and at different relatives’ houses. If, as he claims, the authorities were so knowledgeable that they knew he visited the uncle PN in Mullaitivu in 2006 and knew where to find him at the cricket ground or out with friends, then they surely could have located him at another relative’s house if they were interested in him. The applicant was not questioned again after August 2011, and he did not leave Sri Lanka until September 2012. I note also that during this time he completed high school and applied for, and obtained, a passport. I consider his ability to do both those things without incident indicates he was not in hiding, was not being sought by the authorities and was not of adverse interest.
[25] The applicant claims the authorities have continued to look for him since he left Sri Lanka. The applicant was a young man who had twice been asked if knew the whereabouts of an uncle or what the uncle had done, and may also have been asked if he had ever associated with the LTTE. The applicant had no knowledge of his uncle’s LTTE activities and no knowledge of his whereabouts. The applicant claimed no personal association with the LTTE. After answering such questions he was released and never questioned again. In fact after the questioning in 2011 he was given a letter which said he had been arrested on suspicion but after the police ‘made investigation regarding him, and due has no any offence against him, he was released’. I consider this letter and the lack of follow up indicates their enquiries were made and finalised. I do not accept the authorities could not have found the applicant in his last year in Sri Lanka if he was of interest. I do not accept the authorities continued to ask the applicant’s family or his cricket friends where he was. I consider this claim is an embellishment to strengthen his claims for protection and I do not accept it.
[26] For the purpose of this review, I accept the applicant has an uncle who was in the LTTE, who may have even been a ‘Chief Policeman’ in the LTTE. I do not accept however that the applicant was of adverse interest to the Sri Lankan authorities, including the CID and SLA, prior to leaving Sri Lanka. Having regard to his relationship with his uncle, which I do not accept is a close relationship, and having regard to the lack of information that any other family members or relatives have been targeted by the Sri Lankan authorities for their relationship to the uncle, particularly the uncle’s immediate family, I consider the chance of the applicant facing harm for being related to uncle PN is too remote to amount to a real chance.
The above reasoning is coherent. The Authority was correct to construe the reference to “closely related to” in the UNHCR Eligibility Guidelines as contemplating a close relationship between persons who have a familial or legal relationship, and therefore to consider the nature of the relationship between the applicant and his uncle beyond their blood relations. The evidence before the Authority indicated that the link between the applicant and his uncle was tenuous. In substance, the Authority saw no real risk to the applicant arising from his relationship with his uncle.
The only argument the applicant offers is that the blood relationship between him and his uncle alone meant they were closely related. I do not find that a compelling reading of the UNHCR Guidelines. In any case, the UNHCR Guidelines suggest only that a person with such a relationship “may” require protection. The Authority was entitled, and correct, to consider the relationship as just one part of its broader assessment of whether the applicant was likely to be of adverse interest to the Sri Lankan government. That assessment, which goes to the heart of whether the applicant had a well-founded fear of persecution included consideration of the relationship’s broader context, including the fact that there was no evidence that the uncle’s immediate family had been targeted by the Sri Lankan government.
No error has been identified on the part of the Authority, so as to lead to any error on the part of the primary judge. His Honour was correct to conclude that the Authority’s reasoning was not infected by jurisdictional error. This ground is devoid of merit. No extension of time should be granted to bring an appeal upon the basis of ground 1.
Ground 2
Ground 2 asserts that the primary judge failed to find or consider that the Authority did not take into account the fact that the applicant had a “family link” with his uncle. No such ground of review was referred to by the primary judge. The amended application that was before his Honour has been obtained by my associate to ensure that this had not been overlooked. His Honour at [29] reproduced verbatim the sole ground that was in the amended application, adding court book references that are handwritten on that document.
The reference to “family link” in this proposed ground of appeal is a reference to a part of the UNHCR Eligibility Guidelines which provides at p.27, reproduced above, that “[p]ersons with family links or who are dependent on or otherwise closely related to persons” (emphasis added) who had, among a list of other characteristics, “held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka” may be people who might require international refugee protection, depending on the specifics of the individual case.
Even if the extension to file the proposed further amended notice of appeal was granted, the applicant would likely require leave to advance this proposed ground on appeal upon the basis that it was not brought before the primary judge. The argument seems to be that, even if the applicant is not a close relative of his uncle, he nonetheless has a “family link” with him, and therefore the Authority erred in failing to consider this as an additional basis for his claim to be a refugee entitled to the visa he sought.
In my view this would constitute an untenable attempt to extend the reach of the UNHCR Eligibility Guidelines in a way that is neither logical nor coherent. It would strip them of the necessary link to a well-founded fear of persecution, and instead purport to allow a refugee claim to be advanced upon the basis of nothing more than a mere biological link. That is also entirely contrary to the careful and thorough risk assessment carried out by the Authority and properly assessed by the primary judge and found not to be wanting. Though the particular words “family link” do not appear in the Authority’s decision, it carefully considered whether the applicant’s relation to his uncle was likely to bring him to the adverse attention of the Sri Lankan government, and therefore whether he had a well-founded fear of persecution. It concluded, for the reasons extracted above, that it would not. Its reasoning in that regard is sound. I am reasonably confident that, had this argument been advanced as a ground of review before the primary judge it would rightly have failed.
This proposed ground of appeal is even more devoid of merit than ground 1. No extension of time should be granted to bring an appeal upon the basis of ground 2 either.
Conclusion
As neither proposed ground of appeal has any merit, the application for an extension of time must be refused with costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. Associate:
Dated: 11 March 2025
0
2
2