DPL17 v Minister for Immigration

[2018] FCCA 2669

FEDERAL CIRCUIT COURT OF AUSTRALIA

DPL17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2669

Catchwords:
MIGRATION – Safe haven enterprise (subclass 790) visa – extension of time application – grounds not arguable.

Legislation

Migration Act 1958, ss. 473DA, 473DB, 477

Cases cited
BCF15 v Minister for Immigration and Border Protection (2016) 314 FLR 291
BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169
DBE16 v Minister for Immigration and Border Protection [2017] FCA 942
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

Applicant: DPL17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1744 of 2017

Judgment of: His Honour Judge Wilson

Hearing date: 10 September 2018

Date of Last Submission: 10 September 2018

Delivered at: Melbourne

Delivered on: 10 September 2018

REPRESENTATION

Applicant: In person

Solicitors for the Applicant: None

Counsel for the First Respondent:

Solicitors for the First Respondent: DLA Piper Australia

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: DLA Piper Australia

ORDERS

1. The application filed on 10 August 2017 for an extension of time pursuant to s 477 of the Migration Act is refused.

2. The applicant pay the first respondent’s costs fixed in the sum of $3 667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1744 of 2017

DPL17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

Introduction

1. On 22 May 2017 the Immigration Assessment Authority (“IAA”) decided to affirm a decision of the minister’s delegate to refuse the applicant a safe haven enterprise visa for which the applicant applied.  The applicant had 35 days from 22 May 2017 within which to apply to this court for judicial review of the decision of the IAA.  That meant that the applicant should have filed this proceeding by late June 2017.  Instead, he filed this proceeding on 10 August 2017.  He was out of time.  He needed an order of this court granting him an extension of time within which to commence this proceeding.

2. On an extension of time application, a judge in my shoes ordinarily assesses three things.  The first relates to the delay and includes the length of delay, the reason for the delay and the adequacy of any explanation for that delay.  The second relates to the merits of the case the applicant wishes to advance in the application for judicial review.  The third relates to any prejudice that the minister asserts he may have suffered. 

3. The evidence in this case relating to the delay was set out in the applicant’s affidavit affirmed 9 August 2017. In it, he stated he was referred to a mental health counsellor in or around June 2017 who introduced the applicant to an advisor to a local politician who in turn assisted the applicant in applying to some minister.  The applicant did not say which minister was involved did he say what application was made.  The applicant stated he was told by the advisor that he did not need to apply to this court.  The applicant said that on 19 July 2017 his request to the minister was refused.

4. He said he was again advised that he did not need to do anything.  He said he was told on 4 August 2017 to contact the Asylum Seeker Resource Centre which he said he did on 7 August 2017 at which time he was told about time limits, so he said. 

5. The application to this court was filed by the applicant personally. The grounds on which he relied including the bases on which he sought an extension of time were cast in language that indicated he had obtained legal assistance in their formulation.

6. I am willing to proceed on the basis that the delay of six weeks is not in the category of egregious delay.  The explanation for the delay was dubious, however.  No documentation was exhibited by the applicant demonstrating the application he allegedly made with some minister, whether that minister was state or federal, who advised the applicant to consult that particular minister, what was said especially about not applying to this court nor what the applicant’s mental health issue allegedly was.  The delay may have been short but in my view the explanation for it was poor.  Curiously, the minister said a reasonable explanation was offered so I have proceeded on the basis that the minister did not take the point about delay.

7. The minister did not suggest he suffered any prejudice. 

8. It then became necessary to examine the applicant’s prospects of success in his substantive application for judicial review.  Mortimer J held in MZABP v Minister for Immigration and Border Protection[1] that on an extension of time application any such examination should be no more than impressionistic.  I have proceeded with that in mind.  In BCF15 v Minister for Immigration and Border Protection[2] I reviewed the key authorities on extension of time applications.

   [1] [2015] FCA 1391

   [2] (2016) 314 FLR 291

Synopsis

1. For the reasons that follow, I am not persuaded that the applicant has an arguable, a reasonably arguable or a sufficiently arguable case for the relief he seeks.  In those circumstances, I refuse the extension of time that he seeks.

Relevant background

1. The applicant is a male citizen of Sri Lanka born in 1995 who arrived in Australia as an unauthorised maritime arrival on 29 April 2013.  He applied for a safe haven enterprise (subclass 790) visa on 14 March 2016.  In his statement of claims accompanying his application, the applicant claimed –

   a)he was a Tamil hindu from Sri Lanka, that his parents died when he was young and that he was brought up by his grandmother;

   b)he had been stopped and harassed at an army checkpoint on his way to school on several occasions and that on some occasions he was physically assaulted one on occasion having his hands been burnt leaving visible scarring;

   c)he stopped attending school out of fear of the army harassing him and while running errands for his grandmother the applicant was stopped, then harassed by army and police, on one occasion being assaulted by the police leading to his decision to depart Sri Lanka, which he did with his uncle and younger brother; and

   d)since his departure from Sri Lanka, his grandmother had been visited by two people in plain clothes looking for the applicant and his brother who then assaulted the applicant’s brother who was at home at the time leading to his grandmother relocating to put alarm out of fear.

2. On 24 March 2017 he attended the safe haven enterprise visa interview and gave further evidence about his claims.  He said there had been three visits to his family home in Trincomalee and on the second occasion when his brother was at home the brother was beaten and his grandmother was pushed after which the applicant’s family relocated to Puttalam where his grandmother learned from neighbours that unknown persons had been asking about the applicant and his brother.

3. On 3 April 2017 the applicant provided post-interview submissions.  In them, he claimed that he would be harmed in Sri Lanka on the basis of being a young Tamil, on the basis of his imputed political opinion as a supporter of the Liberation Tigers of Tamil Ealam (“LTTE”) and on the basis of his illegal departure and status as a failed asylum seeker.  The case was referred to the IAA for review.  On 3 May 2017, the applicant sought 21 days additional time to make submissions in respect of the review.  The IAA informed the applicant that no decision would be made prior to 18 May 2017.

4. The applicant did not file any additional information with the IAA.  On 22 May 2017, the IAA decided to affirm the delegate’s decision. 

5. The IAA accepted the applicant’s account of harassment and assaults by the army and police and it accepted his account of being beaten by the police shortly prior to his departure from Sri Lanka.  The IAA did not accept that this pointed to an adverse interest in the applicant, nor did it indicate that he was targeted, nor did it give rise to a real chance that he would be imputed with an LTTE profile or harmed upon his return to Sri Lanka.

6. In paragraph 14 of its reasons the IAA found that neither the applicant nor his family were involved with or connected with the LTTE.  The IAA found that the applicant’s family were able to live and work freely in Sri Lanka and that his family’s relocation to Puttalam in 2004 was by reason of a tsunami rather than by reason of an adverse interest in his family as LTTE supporters.  In paragraph 15 of its reasons the IAA did not accept that the applicant had a profile that was of ongoing interest to the authorities or other people.

7. Accordingly, the IAA did not accept that the authorities or unknown people visited his grandmother in search of the applicant or threatened to kill him.  In paragraph 16 of its reasons the IAA did not accept that the applicant was at risk of harm due to his Tamil ethnicity.  In paragraph 19 of its reasons the IAA did not accept that the applicant was at risk of harm due to his being a young Tamil male from an LTTE controlled area.  In paragraph 20 of its reasons the IAA stated it did not accept that the applicant was at risk of harm by reason of factual matters associated with scarring on his body.

8. In paragraph 21 of its reasons, the IAA accepted that the applicant would be considered by the authorities to be a failed asylum seeker who departed Sri Lanka illegally.  In paragraph 24 of its reasons the IAA stated that it accepted the applicant may be questioned by police at the airport and charged under the Immigrants and Emigrants Act (“Sri Lanka”). However, the IAA did not accept that the applicant would be harmed due to his being a failed asylum seeker as recorded in paragraphs 33 and 41 of the IAAs reasons.

9. Between paragraphs 24 and 29 of its reasons the IAA said it found that as a result of his illegal departure the applicant may be detained and questioned at the airport, fined for breaching the Immigrants and Emigrants Act and that he may face a period of remand in prison in poor conditions.  In paragraph 30 the IAA reasoned that the period in remand did not amount to serious harm.  It also said in paragraph 31 that any surety imposed in relation to bail did not amount to serious harm, nor did the imposition of a fine and, in paragraph 32, the IAA reasoned that the treatment of the applicant as a result of his illegal departure was the result of a law of general application and did not amount to persecution.

10. In paragraph 39 of its reasons the IAA said that despite his young age the questioning of the applicant did not amount to serious harm and paragraph 40 the IAA reasoned that a fine imposed for his illegal departure and the poor prison conditions in which he may be held on remand did not amount to significant harm.

11. Against that background, let me now turn to the applicant’s grounds of review as expressed.

Ground one

1. Under ground one, the applicant asserted that the IAA denied him procedural fairness because, so he said, the IAA did not alert the applicant about new issues that arose before it or because the IAA’s reasoning departed from the delegate’s reasoning. No particulars were given of this allegation, so it was not possible to say what “new issue” was relevant or in what way the IAA’s reasoning departed from the delegate’s. Under s 473DB of the Migration Act (“Act”) the IAA was under no obligation to put its concerns to the applicant nor even to raise issues arising on the review.

2. Even if the IAA departs from the delegate’s reasoning the IAA does not thereby fall into jurisdictional error a point made by the Full Court in DGZ16 v The Minister for Immigration and Border Protection.[3] In any event, the IAA’s procedural fairness obligations are exhaustively codified in s 473DA of the Act. No room exists for common law principles of natural justice as was held in DBE16 v The Minister for Immigration and Border Protection.[4]

   [3] [2018] FCAFC 12

   [4] [2017] FCA 942

3. Ground one was not arguable or reasonably arguable.

Ground two

1. Under ground two, the applicant asserted that the IAA constructively failed to review the delegate’s decision because, so he said, the IAA failed to inform the applicant of the issues on review and because it failed to consider getting new information. No particulars of that assertion were given. This was not a case where the IAA decided the applicant’s case on a different basis to that of the delegate. Consequently, the IAA was not required to consider the exercise of its discretionary powers under s 473DC of the Act as was canvassed in Minister for Immigration and Border Protection v CRY16.[5]

   [5] [2017] FCAFC 210

2. It must not be overlooked that in BMB16 v Minister for Immigration and Border Protection[6] the Full Court held that the ambit of review conducted by the IAA was not dependent upon identifying error by the delegate.  I was unable to conclude that ground two was arguable in this case. 

   [6] [2017] FCAFC 169

3. Today, I asked the applicant to tell me in his own words what he said the IAA did wrong in this case.  He said he did not think there was any mistake by the IAA.  I agree.  In my view, there was no mistake made by the IAA.

Conclusion

1. No basis was shown for the grant of the extension of time. I refuse to grant it. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:              20 September 2018