DIZ16 v Minister for Home Affairs
[2019] FCA 767
•24 May 2019
FEDERAL COURT OF AUSTRALIA
DIZ16 v Minister for Home Affairs [2019] FCA 767
Appeal from: Application for extension of time: DIZ16 v Minister for Immigration & Anor [2018] FCCA 3502 File number: WAD 49 of 2019 Judge: MCKERRACHER J Date of judgment: 24 May 2019 Date of publication of reasons: 27 May 2019 Catchwords: MIGRATION – application for leave to appeal from the Federal Circuit Court – where the primary judge found no jurisdictional error in the Immigration Assessment Authority’s decision – unparticularised draft ground of review – where insufficient merit in the proposed ground to warrant leave to be granted Legislation: Migration Act 1958 (Cth) Pt 7AA Date of hearing: 25 May 2019 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 11 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr T Lettenmaier Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to the question of costs ORDERS
WAD 49 of 2019 BETWEEN: DIZ16
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
MCKERRACHER J
DATE OF ORDER:
24 MAY 2019
THE COURT ORDERS THAT:
1.The application be refused.
2.The applicant pay the costs of the first respondent, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCKERRACHER J:
This is an application for an extension of time from a judgment of the Federal Circuit Court of Australia: DIZ16 v Minister for Immigration & Anor [2018] FCCA 3502. The delay in filing the application was moderate. The application was 33 days out of time and an explanation for the delay has been offered. The Minister accepts that there is no specific prejudice to the Minister by the delay beyond the general prejudice of delay. The real question for this application is to identify whether or not there is any specific error on the part of the primary judge which would warrant an extension of time being granted.
The relevant facts in relation to the applicant’s application have been set out in the decision of the Immigration Assessment Authority and the decision of the Federal Circuit Court and do not require repetition other than to focus on a few key aspects.
BEFORE THE AUTHORITY
In relation to the applicant’s claims, the Authority accepted that he undertook training with the Liberation Tigers of Tamil Eelam (the LTTE) in 2005, that he transported LTTE members in his auto rickshaw and that the authorities may be aware of these activities. The Authority accepted the applicant was arrested in November 2006 and held for six days and physically assaulted. It also accepted that he was arrested and held for two days in February 2007 after a bomb blast. The Authority accepted that he travelled to Malaysia in 2008 and worked at Qatar from 2008 to 2010 and was questioned by the authorities on his return.
The Authority, however, did not accept various other claims and was not satisfied that the applicant would face any harm on return to Sri Lanka. The Authority did accept that he had left Sri Lanka illegally which was an offence, but found that the imposition of a fine and a short period of time in detention would not amount to serious harm for the purposes of the Refugee Convention. For the complementary protection provisions, for the same reasons, it concluded that the applicant would not face a real risk of significant harm.
IN THE FEDERAL CIRCUIT COURT
The applicant then sought review of the Authority’s decision in the Federal Circuit Court and filed an application raising the following grounds:
1. The assessor failed to properly consider all of [the applicant’s] claims.
2.The assessor didn’t give [the applicant] a chance to comment on one aspect of [the applicant’s] claims.
In relation to the first ground, the primary judge found that there was no claim that had been particularised or identified that was not properly considered by the authority. In relation to ground 2, the primary judge noted that the review by the Authority was under Pt 7AA of the Migration Act 1958 (Cth) and there was no obligation to invite the applicant to attend an interview or give further information or to invite the applicant to comment on his claims or expand upon them.
IN THIS COURT
In the appeal to this Court, if leave were granted, the applicant would advance one ground of appeal only in these terms, ‘jurisdictional error due to no [sic] following or [sic] facts presented’. This ground, taking it literally, is not particular helpful. Without particulars, it does not identify the primary judge’s error in his reasons and appears simply to be a further challenge to the decision of the Authority.
As explained by the applicant in his oral submissions today, he can only infer that the Authority did not look at the facts properly and did not look at all the facts because he has presented all of the evidence to the Authority. But a mere assertion of that nature is not sufficient to demonstrate that the primary judgment is affected by any appealable error.
In my opinion, the primary judge was correct to find for the reasons he gave that the decision made by the Authority did not suffer from any jurisdictional error. Any suggestion that the applicant was not afforded procedural fairness has not been taken to any specifics. The applicant was not denied an opportunity to present his case during the course of the Federal Circuit Court proceedings.
In this proceeding also the applicant was afforded the opportunity to file any additional evidence, amended application or to provide written submissions, but he has not done any of those things. He was sent a copy of the Minister’s submissions in advance of the hearing and has been assisted by an interpreter but he was still be unable to identify any specific error.
CONCLUSION
In all those circumstances, the ground that is advanced by way of a draft, if leave were granted, could not succeed. The application for an extension of time must be dismissed with costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 27 May 2019
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