DPL17 v Minister for Immigration and Border Protection

[2019] FCA 638

FEDERAL COURT OF AUSTRALIA

DPL17 v Minister for Immigration and Border Protection [2019] FCA 638

Review of:	DPL17 v Minister for Immigrationand Border Protection [2018] FCCA 2669
File number:	VID 1509 of 2018
Judge:	O'CALLAGHAN J
Date of judgment:	30 April 2019
Date of publication of reasons:	8 May 2019
Catchwords:	MIGRATION – Application for review of decision of Federal Circuit Court dismissing application for extension of time for judicial review of decision of Immigration Assessment Authority – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa))
Date of hearing:	30 April 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	16
Solicitor for the Applicant:	The Applicant appeared in person with the aid of an interpreter
Solicitor for the Respondents:	Ms M Montalban

ORDERS

VID 1509 of 2018

BETWEEN:

DPL17

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

FEDERAL CIRCUIT COURT OF AUSTRALIA

Third Respondent

JUDGE:	O'CALLAGHAN J
DATE OF ORDER:	30 APRIL 2019

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the first respondent, to be agreed or assessed.

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

REASONS FOR JUDGMENT
 (Revised from the transcript)

O’CALLAGHAN J:

1. These reasons for judgment were made at the hearing on 30 April 2019 and accompany the orders set out above.

2. This is an application for relief under s 39B of the Judiciary Act 1903 (Cth) in relation to the judgment and orders of a judge of the Federal Circuit Court of Australia (Federal Circuit Court) given on 10 September 2018, dismissing with costs an application for an extension of time for judicial review of a decision of the Immigration Assessment Authority (IAA) dated 22 May 2018. 

3. The applicant is a citizen of Sri Lanka.  He was born in 1995.  He arrived in Australia as a so-called “unauthorised maritime arrival” on 9 June 2013.  The applicant applied for a Safe Haven Enterprise (Class XE subclass 790) visa on 14 March 2016.  In his statement of claim accompanying that application, the applicant made the following claims: that he was a Hindu of Tamil ethnicity; that his parents had died when he was young; that he was brought up by his grandmother; and that he was often stopped and abused by the army on the way to school or whilst running errands.  He also claimed that he had been harassed and assaulted by the police and that as a result he had left Sri Lanka.

4. He also said that, since he left, his grandmother had been visited by the police looking for him.  The applicant further claimed that he would be harmed in Sri Lanka due to his Tamil ethnicity, his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE), his illegal departure from Sri Lanka and his status as a failed asylum seeker.  He also claimed that he would be further imputed with a pro-LTTE opinion because of scars on his hands inflicted by a member of the Sri Lankan army.

5. The application for the Safe Haven Enterprise visa was refused by a delegate of the Minister on 10 April 2017.  The matter was then referred to the IAA for review.  The applicant then sought some additional time to prepare his case.  The IAA granted him some additional time to do so, but the applicant did not provide to the IAA any documents or submissions.  On 22 May 2017, the IAA affirmed the decision under review.

6. In affirming the decision under review, the IAA accepted the applicant’s account of harassment and assault by the army and police.  The IAA accepted that the applicant had been beaten by the police shortly before leaving Sri Lanka.  The IAA did not, however, accept that this pointed to an adverse interest in the applicant or indicated that he had been targeted.  The IAA further did not accept that the applicant was imputed with an LTTE profile, finding that past harassment experienced did not give rise to a real chance of the applicant being so imputed or harmed on that basis.

7. The IAA did not accept the applicant had a profile that was of any ongoing interest to the authorities or other people, and did not accept that the authorities or anyone else had visited the applicant’s grandmother in search of him.  The IAA did not accept that the applicant was at risk of harm on the basis of his Tamil ethnicity, being a young Tamil male from an LTTE controlled area, or because he had scars on his body.

8. The IAA accepted that the applicant would be considered by the authorities to be a failed asylum seeker who departed Sri Lanka illegally and found that, as a result of his illegal departure, he may upon his return be detained and questioned at the airport for up to 24 hours and fined for breaching the Immigrants and Emigrants Act 1948 (Sri Lanka). The IAA also found that the applicant may face a period of remand in prison in poor conditions. The IAA found, however, that the period in remand would not amount to serious harm and that any questioning by authorities, any surety imposed with respect to bail, and any fine imposed would not amount to serious harm. The IAA found that such treatment was not discriminatory and did not amount to persecution. The IAA therefore concluded that the applicant did not meet the definition of a refugee and did not meet s 36(2)(a) of the Migration Act 1958 (Cth).

9. As to the question of complementary protection, the IAA found that there was not a real chance that the applicant would face harm on the basis of being a young Tamil male with scars or on the basis of being a person who lived in a former LTTE controlled area or for having left Sri Lanka illegally, and so did not meet s 36(2)(aa) of the Migration Act.

10. The applicant then commenced proceedings in the Federal Circuit Court on 8 November 2017.  That application was approximately six weeks out of time.  The primary judge, however, proceeded on the basis that the applicant’s explanation for the delay was reasonable and that the respondent would suffer no prejudice if an extension of time were granted. The primary judge, however, ultimately refused to make an order granting the extension of time because he formed the view that the case that the applicant sought to bring had no prospects of success.

11. The proposed grounds before the primary judge were as follows:

12. Proposed ground 1 alleged that the IAA denied the applicant procedural fairness because it did not alert him to new issues that arose before it.  In circumstances where no particulars of that ground were provided, the primary judge found that the ground could not succeed. 

13. Proposed ground 2 alleged that the IAA failed to consider getting new information.  Again, no particulars of this allegation were provided.  When the applicant was asked to explain by the primary judge what the IAA did wrong in his case, the applicant said that there had been no mistake made by the IAA.  For those reasons, unsurprisingly, the primary judge dismissed the application for extension of time with costs.

14. The applicant filed this application for review under s 39B of the Judiciary Act 1903 (Cth) on 22 November 2018. The grounds for relief in substance mirror the grounds contended for below, namely that:

    (1)the decision of the Federal Circuit Court was made without jurisdiction or was affected by an error of jurisdiction by affirming the decision of the authority;

    (2)the IAA denied the applicant procedural fairness because 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; and

    (3)the IAA constructively failed to review the delegate’s decision because the IAA failed to inform the applicant of the issues on review and because it failed to consider getting new information.

15. At the hearing this afternoon, the applicant appeared for himself with the benefit of an interpreter.  The applicant confirmed that he had not sought to file any written submissions in support of his application.  I asked the applicant if he had anything further to say in support of his application.  In substance, the applicant said that based on recent events in Sri Lanka, including the bombings that occurred very recently, his life was at real risk.  The applicant also said that he had no support in Sri Lanka and that he was therefore not able to obtain any evidence.  The applicant said, in substance, that he disagreed with the IAA’s finding that he could return safely home to his country.

16. None of the matters put by the applicant orally at the hearing today, and neither of the two grounds of the application, is capable of establishing a case of jurisdictional error by the Federal Circuit Court.  The applicant has wholly failed to identify how the decision of the primary judge is made without jurisdiction or how it was affected by any error of jurisdiction.  In those circumstances, I am bound to dismiss the application.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.

Associate:

Dated:       8 May 2019