DNT17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

DNT17 v Minister for Home Affairs [2019] FCA 978

Appeal from: application for an extension of time and leave to appeal: DNT17 v Minister for Immigration [2019] FCCA 173
File number: NSD 212 of 2019
Judge: MARKOVIC J
Date of judgment: 24 June 2019
Catchwords: MIGRATION – application for leave to appeal and extension of time – where Federal Circuit Court of Australia dismissed application in a case seeking reinstatement of an application for judicial review – where Immigration Assessment Authority had affirmed the decision of a delegate to refuse to grant the applicant a Safe Haven Enterprise visa – whether proposed grounds of appeal have sufficient merit – application dismissed
Legislation:

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Federal Court Rules 2011 (Cth) rr 35.11, 35.12, 35.14

Cases cited:

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

House v The King [1936] 55 CLR 499

Singh v Minister for Immigration and Border Protection [2017] FCAFC 195

Date of hearing: 20 May 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 56
Counsel for the Applicant: Mr G Foster
Solicitor for the Applicant: Sentil Solicitor & Barrister
Solicitor for the First Respondent: Mr S Valliappan of DLA Piper Australia
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 212 of 2019
BETWEEN:

DNT17

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

JUDGE:

MARKOVIC J

DATE OF ORDER:

24 JUNE 2019

THE COURT ORDERS THAT:

1.The applicant’s application for an extension of time and leave to appeal be dismissed. 

2.The applicant pay the first respondent’s costs as agreed or taxed. 

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MARKOVIC J:

  1. This is an application for an extension of time and leave to appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application in a case in which the applicant sought an order reinstating an application for judicial review of a decision of the second respondent (Authority): see DNT17 v Minister for Immigration [2019] FCCA 173 (DNT17).  The Authority had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise visa (SHEV). 

  2. The primary judge’s decision is interlocutory: see r 1.04 and dictionary (definition of “application in a case”) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). Accordingly, the applicant requires leave to appeal from it: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act).

  3. On 18 February 2019 the applicant, who was self-represented at the time, filed a notice of appeal (Notice of Appeal) in this…

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Details
Case
[2019] FCA 978
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of Sri Lanka, sought leave to appeal and an extension of time in relation to a decision by the Federal Circuit Court of Australia dismissing his application for judicial review. The review sought reinstatement of his application for a Safe Haven Enterprise visa, which had been refused by the Immigration Assessment Authority. The Authority had affirmed a delegate's decision that the applicant's claims did not meet the criteria for the visa. The applicant contended that the Authority misinterpreted his claims and ignored evidence that the Criminal Investigation Department and Tamil Makkal Viduthalai Pulikal men accused him of having worked for the Liberation Tigers of Tamil Eelam.

The court was required to determine whether the proposed grounds of appeal had sufficient merit to warrant leave to appeal. This involved examining whether the primary judge made an error in exercising discretion, as outlined in House v The King. The applicant argued that the primary judge erred by not addressing the Authority's conclusion that the men who extorted the applicant were not the same men who had threatened him previously and by not considering the accusation that he worked for the LTTE.

The court found that the primary judge had properly considered the evidence and provided a probative basis for the Authority's conclusions. The judge accepted that the visits from the men were for the purpose of extorting money and found no error in the Authority's reasoning. The court concluded that the proposed grounds of appeal lacked merit and that the primary judge's discretion had not miscarried.

The application for leave to appeal and an extension of time was dismissed. The applicant was ordered to pay the Minister's costs as agreed or taxed.

Orders

Orders of the court

1. The applicant’s application for an extension of time and leave to appeal be dismissed.

2. The applicant pay the first respondent’s costs as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The applicant subsequently filed the Leave to Appeal Application amended to also seek an order for an extension of time within which to seek leave to appeal, which counsel appearing for the applicant accepted the applicant would require. The hearing before me proceeded on that basis, namely that the applicant sought an extension of time and leave to appeal. In light of that the Minister no longer pressed his notice of objection to competency. BACKGROUND The following background, which I did not understand to be in dispute, is substantially taken from the Minister’s submissions. The applicant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia by boat on 26 September 2012 as an unauthorised maritime arrival. On 20 July 2016 the applicant lodged his application for the SHEV. He made the following claims:(1)he was a volunteer with the Red Cross in 2005 to 2006 and worked in an area controlled by the Liberation Tigers of Tamil Eelam (LTTE). On 10 October 2006, while travelling to Batticaloa, he was stopped by unknown men in a white van and forced into the van, blindfolded and taken to a small room in a house at an unknown destination where he was asked to join the Criminal Investigation Department (CID) and the Tamil Makkal Viduthalai Pulikal (TMVP). The men who were present offered him a bribe to be a spy and to investigate the LTTE. The applicant refused and was therefore accused of being an LTTE supporter, threatened and assaulted;(2)the following day he went to work at the Red Cross and told his supervisor what had happened and that he should not say anything. After this he did not return to work. About three days later two individuals came to his home and threatened him and demanded that he join them. The applicant refused. As his family were inside the house the men could not harm him and they left. For the next few days those individuals frequently came to his home harassing him and asking him to join them but he refused;(3)because he feared being killed, the applicant found employment in Dubai and lived and worked there from July 2007 until March 2010 when his visa expired. About ten days after he returned from Dubai the CID and TMVP members who had previously targeted him heard of his return. Approximately four people came to his home, threatened him and then left. The next day the TMVP and CID members again came to his home. They were armed with guns and demanded 20 Laks from him. The applicant told them that he did not have the money and they left without harming him;(4)the applicant then applied for a visa to Qatar. As the application took a long time he did not leave Sri Lanka until November 2011. In the interim he did not stay with his parents and kept a low profile;(5)in July 2012 the applicant returned from Qatar for his father’s funeral. On 30 July 2012, the day after the funeral, the CID and TMVP members again came to his home and demanded payment from him and threatened to kill him if he did not pay. The applicant feared for his life and tried to plan another trip to Qatar. However, his visa was coming to an end;(6)after this the CID and TMVP members often came to his home to harass him. He stayed with different people and moved houses to remain safe;(7)on 5 September 2012 the applicant left Sri Lanka illegally; and(8)since leaving Sri Lanka the CID and TMVP members continue to question his mother about his whereabouts and threaten to kill him if they find him.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 12 July 2017 the Authority affirmed the decision under review. THE AUTHORITY’S DECISION The Authority accepted that:(1)the applicant volunteered with the Red Cross from 2005 to 2006;(2)the applicant was abducted by men in a white van, interrogated, beaten and threatened, and his family was threatened;(3)the perpetrators of these acts were affiliated with the CID and the TMVP and the applicant was offered a bribe to join these men, become a spy and obtain information against the LTTE;(4)the applicant was asked whether he was an LTTE supporter, which he denied. He was then verbally abused, threatened and beaten with a stick and suffered injuries; (5)about three days later and for a few days subsequently individuals came to the applicant’s home, threatened him and demanded that he join them but he always refused; and (6)the applicant left Sri Lanka for Dubai legally on his own genuine passport. The Authority then considered the period after the applicant’s return from Dubai. It accepted that he returned to Sri Lanka after his work visa had expired. At [17] and [18] of its reasons the Authority relevantly said:17.… The applicant claimed that around ten day after his return, around four men came to his home and demanded money. The applicant said that he recognised one of the men as the same man who had threatened him before he had left for Dubai. He claimed that the men threatened him and said that if he did not give him the money they would kill him. He said that he told them that he did not have any money and the men went away. He claimed that they returned the next day, this time with guns and demanded money from him and his family again. He said that they pointed a gun at him and said that they would shoot and when the applicant did not give them any money, they left. At his interview, the applicant said that these men were more interested in extorting money from him and he thought that they would want more money.18.The Danish Immigration Service reported that the Pillayan faction and TMVP cadres, due to a lack of funds, were resorting to extortion, even though they held political power in the Eastern Province. Information also indicates that “many incidents related to the paramilitary groups are not reported as people keep quiet about them”. The applicant has been consistent throughout his arrival interview, application and interview recounting these events. Based on the consistency of the applicant’s evidence and also the country information, I accept that when he returned to Sri Lanka in 2010 from working in Dubai he was extorted for money and it is plausible that these men were from paramilitary groups. Considering that the applicant returned to his home village, it is also plausible that one of these men was one of the men that had previously threatened the applicant at some point from 2005 to 2007, however I consider that it is improbable that this man came with the specific intent to harm the applicant or recruit him into the CID or the TMVP. I consider it was in an opportunistic capacity to extort money from the applicant and his family following his return from overseas. Based on the applicant’s own evidence, the men went away without harming either himself or his family when they did not pay. At his interview the applicant said that three years after he had left Sri Lanka his situation was that he thought they wanted money and that he did not know what the intentions of the men were and I accept that the men returned to ask for money. I am of the view that the visits and threats that the applicant and his family encountered from these men were as a result of extortion and for no other reason. (footnotes omitted.)

Ratio Decidendi

Legal Principle Established

The applicant submitted that the primary judge did not address the question of whether the Authority’s conclusion about the “same men”, as opposed to unidentified men from the CID or the TMVP, was considered.Consideration Common to the application for leave to appeal and application for an extension of time is the question of the merit of the proposed grounds of appeal. It is thus convenient to address that issue first. It was not in dispute that the primary judge’s refusal to make the orders sought by the applicant, namely to set aside the order dismissing his Judicial Review Application, involved the exercise of a discretion. Ultimately then, in order to succeed in his appeal, the applicant will have to establish that in exercising that discretion the primary judge made an error of the type identified in House v The King [1936] 55 CLR 499 at 504-505 (House v The King). That is, he must establish that the primary judge acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, was mistaken about the facts, did not take into account a material consideration or, if it is not apparent how the primary judge reached his or her result, that it appears, based on the facts, that it is unreasonable or plainly unjust. Counsel for the applicant accepted that in order to succeed in the proposed appeal the applicant would need to establish that the primary judge’s discretion miscarried in one of the ways described in House v The King and that if he could establish error in the way in which the primary judge addressed ground 1 and/or ground 3 that would be sufficient to demonstrate that the primary judge’s discretion had miscarried.Ground 1 Ground 1 of the proposed appeal takes issue with the primary judge’s finding that there was no merit in ground 1 of the Judicial Review Application. That ground alleged that the Authority misinterpreted the claim that the CID and TMVP men came to extort money from the applicant and not for any other reason and ignored the fact that the CID and TMVP men accused him of having worked for the LTTE. The primary judge found that the Authority had a proper basis for reaching its conclusion in [18] of its decision record that the visits from the men were only for the purpose of extorting money from the applicant and that there was nothing illogical or unreasonable in the requisite sense in the Authority’s reasoning in that regard. The primary judge therefore concluded that ground 1 lacked merit such as to support the application for reinstatement. The primary judge set out and considered the evidence relied on by the Authority (at [18] of its decision record) in reaching its conclusion and found that the matters set out there provided a probative basis for the Authority’s conclusions. In particular that on his return from Dubai the applicant was extorted for money probably by paramilitary groups; while it was plausible that one of the men who came to extort the applicant in 2010 may have been one of the men who had threatened him in 2006 or 2007, it was improbable that in 2010 this man came with the specific intent to harm the applicant because the applicant had just returned from overseas with money and neither he nor his family were harmed; and the applicant’s evidence was that these men were more interested in extorting money from him and he thought that they would want more money.