CUU17 v Minister for Immigration and Border Protection
[2018] FCA 1464
•27 September 2018
FEDERAL COURT OF AUSTRALIA
CUU17 v Minister for Immigration and Border Protection [2018] FCA 1464
Appeal from: Application for extension of time: CUU17 v Minister for Immigration and Border Protection [2018] FCCA 69 File number(s): TAD 6 of 2018 Judge(s): O'CALLAGHAN J Date of judgment: 27 September 2018 Catchwords: MIGRATION – application for extension of time in which to appeal from decision of Federal Circuit Court – where applicant claims Tribunal failed to consider a claim – where applicant claims Tribunal failed to make a finding on a substantial, clearly articulated argument that violence was politically motivated because it occurred around election time – finding that the Tribunal did understand that political violence could happen during elections – finding that applicant had not clearly articulated the argument – finding that Tribunal properly considered claims relating to applicant’s father – application refused Legislation: Migration Act 1958 (Cth), s 65 Cases cited: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
Date of hearing: 4 September 2018 Registry: Tasmania Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Vrachnas and Co Counsel for the First Respondent: Mr R Knowles Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
TAD 6 of 2018 BETWEEN: CUU17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
27 SEPTEMBER 2018
THE COURT ORDERS THAT:
1.The application for an extension of time in which to institute an appeal from the decision of the Federal Circuit Court of Australia dated 25 January 2018 be dismissed.
2.The applicant pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
Introduction
The applicant applies for an extension of time in which to appeal from orders of the Federal Circuit Court of Australia (the Federal Circuit Court) dismissing an application for judicial review of a decision of the second respondent (the Tribunal) affirming a decision of a delegate of the first respondent (the Minister) to refuse to grant the applicant a protection visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Migration Act).
The applicant seeks to rely on a proposed notice of appeal, which contains one ground with two particulars. The ground sought to be relied on is that the primary judge erred in not finding that the Tribunal “failed to consider relevant considerations including claims, integers of claims or material question[s] of fact or information before the Tribunal”. The particulars to that proposed ground are:
(1)The Tribunal accepted the claims that the applicant and his father had been active in support for the [United National Party (UNP)], and that they were attacked in or about 2009 by a group of men with machetes, that the applicant was seriously injured by machetes and left with permanent scarring, that his father escaped. It further accepted that there was violence around election times, but in rejecting the claim that this attack was politically motivated, it failed to have regard to the question whether the attack in 2009 was in the period of preparation for the Presidential and Parliamentary elections in January 2010 and April 2010, and to the evidence that this was so.
(2)In rejecting the claim that the applicant’s father disappeared, the Tribunal failed to have regard to the question whether the attack in 2009 was in the period of preparation for the Presidential and Parliamentary elections in January 2010 and April 2010, and to the evidence that this was so.
For the reasons set out below, neither of those contentions is arguable. The primary judge was correct to find that the Tribunal considered and dealt with the case properly before it and, in particular, the applicant’s claims about the motivation for an attack on him and his father in 2009. It follows that the application for an extension of time will be refused with costs.
Background
The applicant is a citizen of Sri Lanka. He applied for the visa in 2012, claiming that, on any return to Sri Lanka, he would face a real chance of serious or significant harm at the hands of political opponents due to his actual or imputed support for the UNP. Among other things, he claimed that he and his father had been attacked by men with machetes in 2009 and his father had disappeared around six months after that attack.
On 10 December 2013, a delegate of the Minister refused to grant the applicant the visa.
On 17 December 2013, the applicant applied to the Refugee Review Tribunal (as it then was) for review of the delegate’s decision.
On 7 September 2016, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa. Among other things, the Tribunal was not satisfied that, on any return to Sri Lanka, the applicant would face a real chance of serious or significant harm at the hands of political opponents or others.
The Tribunal was prepared to accept that the applicant’s family had traditionally supported the UNP; found that the applicant’s father was involved with the UNP but did not have any official position or role; accepted that, in 2005, a group of supporters of the Sri Lankan Freedom Party, (or SLFP), came to the home of the applicant's father and threatened his father; accepted that, from 2005, the applicant accompanied his father when his father undertook activities for the UNP; and accepted that, in 2009, men with machetes came to the applicant’s home while his father was there and, although his father escaped unharmed, the applicant was attacked and injured before he too managed to escape.
The Tribunal did not accept that the 2009 attack was carried out by SLFP supporters or was otherwise politically motivated; that the applicant’s father disappeared or was killed either six months after the 2009 attack or at any other time; or that after 2005, the applicant or his father had experienced any threats or harm from political opponents.
The Federal Circuit Court
The applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. Relevantly, the primary judge (who also rejected various grounds of appeal not pursued in this court) held as follows with respect to the first particular of the proposed ground (at [52]-[53]):
The Tribunal’s reasons at [51] disclose:
Firstly, prior to this, the last incident of politically-motivated threats or violence against the applicant’s father was in 2005, some four years prior to the 2009 attack. The Tribunal notes that the applicant has made vague references to his father facing many threats and problems but his evidence at hearing is that no other incidents occurred between 2005 and 2010 except the two 2005 incidents previously described in the 2009 machete attack (and his father's disappearance, discussed below). The applicant did not indicate that he faced any problems while accompanying his father on election campaigns in either 2006 or 2008. At the hearing, it was put to him that this was surprising given information indicating that most political violence happens during election time. The applicant did not indicate that the 2009 attack took place during election time or that he and his father were involved in election campaigning at that time. The applicant's evidence has not indicated any particular political event or dispute with SLFP supporters precipitated such a violent attack.
I am satisfied that the Tribunal did raise the relevant issue with the applicant. The applicant himself did not specifically claim a nexus between the 2009 attack and election time or election campaigning by himself or his family. As such, this was not an integer of a claim requiring further attention. Although the notion of onus of proof is not strictly applicable to administrative enquiries, the applicant must supply the relevant facts in sufficient detail or particularity to enable the Tribunal to establish the veracity of the claim. The Tribunal is not required to make the applicant's case for him. I find no merit in this particular.
The primary judge held as follows with respect to the second particular of the proposed ground (at [55]):
[51] and [56] of the Tribunal’s reasons specifically address this issue. [51] is set out above and I repeat my observations. At [56] the Tribunal notes the inconsistencies in the applicant’s evidence as to the time of his father’s disappearance. Within context of findings of fact and credit, the Tribunal clearly addresses the issue. Consequently, I find no merit in this particular.
On 28 February 2018, the applicant applied to this court for an extension of time in which to appeal from the judgment of the Federal Circuit Court.
Consideration
In all the circumstances of this case, and despite there being no adequate explanation for the delay, the Minister is content for the court to proceed on the basis that whether an extension of time ought to be granted principally depends upon the merits of the proposed appeal (cf VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588).
The applicant relies on the principle summarised in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [55]:
Where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. The joint judgment of Gummow and Callinan JJ in Dranichnikov described the task of the Tribunal where the applicant relied upon membership of a particular social group. Their Honours said (at [26]):
... the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.
This is not the occasion to explore the metes and bounds of the undoubted general proposition that where a tribunal fails to make a finding on substantial, clearly articulated argument relying upon established facts, that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction. See the discussion in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [56]-[62].
In this case, it is in my view abundantly clear that no case can be made that the Tribunal erred for the reasons particularised in the proposed notice of appeal.
Taking particular 1 first. It says that the Tribunal “failed to have regard to the question whether the attack in 2009 was in the period of preparation for the Presidential and Parliamentary elections in January 2010 and April 2010, and to the evidence that this was so”.
The particular is founded on a false premise, at least in part. There was no evidence before the Tribunal that the attack in the middle of 2009 was in the period for the Presidential and Parliamentary elections in January 2010 and April 2010. That evidence was first adduced before the primary judge in the form of exhibits to an affidavit of the applicant sworn 10 October 2016.
In any event, there is no substance to the contention. It is clear that the Tribunal understood the significance of the notion that political violence in Sri Lanka sometimes happened at relevant times during election times. That much is apparent from paragraph [51] of the Tribunal’s reasons, to which the primary judge referred, and in particular from the Tribunal’s observations that “[t]he applicant did not indicate that he faced any problems while accompanying his father on election campaigns in either 2006 or 2008” and that, although it was put to the applicant that this was surprising given information indicating that most political violence happens during election time, “he did not indicate that the 2009 attack took place during election time or that he and his father were involved in election campaigning at that time”.
How it could be that the Tribunal was, in those circumstances, supposed to divine “a substantial, clearly articulated argument relying upon established facts” to the effect that the attack in 2009 was in the period of preparation for the Presidential and Parliamentary elections in January 2010 and April 2010 was something that counsel for the applicant, with great respect to him, was unable to explain.
It is also clear that the applicant himself well understood the potential evidentiary significance of making a connection between the election period and the likelihood of possible violence. His own affidavit before the Tribunal did make the connection when he described events in 2005, but did not do so when he came to describe the events at in 2009 or the beginning of 2010. Again, in such circumstances, it is inconceivable that it could have occurred to the Tribunal that the proper discharge of its function included consideration of an unexpressed contention that the 2010 election (as to which the applicant had not adduced a scintilla of evidence) was relevant to his claims.
It follows that the primary judge was correct to reject particular 1 of the proposed ground.
Particular 2 is along the same lines, namely that the Tribunal failed to have regard to the question whether the attack in 2009 was in the period of preparation for the Presidential and Parliamentary elections in January 2010 and April 2010, and to the evidence that this was so.
This point is without merit. Quite apart from anything else, in his initial statement the applicant said that his father disappeared six months after the 2009 attack. On the other hand, when he gave evidence at the hearing, the applicant said that his father disappeared around the end of 2011. In such circumstances, as counsel for the Minister submitted:
… there was nothing before the Tribunal that required it to consider … particularly its previous analysis of the attack, as to whether or not this was somehow motivated by proximity to an election. And how could the Tribunal have done that in any event, given the disparate dates on which the applicant said the event occurred? It’s not even clear that it occurred around an election in 2010, on the account that has been given … So, again, it’s unclear, in my submission, what more could have been expected from the Tribunal, in all the circumstances. It certainly can’t be said that somehow the Tribunal has fallen into error, let alone jurisdictional error, in all the circumstances.
That submission is, with respect, irresistible.
Conclusion
The application for an extension of time in which to appeal 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 O'Callaghan. Associate:
Dated: 27 September 2018
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