DTF17 v Minister for Immigration
[2018] FCCA 2666
•13 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DTF17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2666 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application to extend time under s 477 of the Migration Act 1958 (Cth) – application filed out of time – no satisfactory explanation for the delay – no arguable case of jurisdictional error made out by the proposed grounds – no sufficiently arguable case of jurisdictional error to extend time in the interests of the administration of justice – application for an extension of time dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476, 476 |
| Applicant: | DTF17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2630 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 13 September 2018 |
| Date of Last Submission: | 13 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondents: | Ms H Dejean Australian Government Solicitor |
ORDERS
The application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.
DATE OF ORDER: 13 September 2018
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2630 of 2017
| DTF17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for an extension of time under s 477 of the Migration Act 1958 (Cth) (“the Act”) in respect of proceedings commenced on 21 August 2017 seeking a constitutional writ within this Court’s jurisdiction under s 476 of the Act in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 13 July 2017 affirming a decision of the delegate not to grant the applicant a Temporary Protection visa.
The applicant was found to be a citizen of Sri Lanka and arrived in Australia as an unauthorised maritime arrival on 8 September 2012. The applicant is of Tamil ethnicity from a particular district in the Eastern Province of Sri Lanka. The applicant claimed to fear harm by reason of being a supporter of the Tamil National Alliance (“TNA”) and as a result of incidents that he alleges occurred at his home in January 2010 and thereafter, and again on 26 July 2012. The applicant claims to fear harm from the Tamil Makkal Viduthalai Pulikal (“TMVP”) if he returns to Sri Lanka.
On 23 March 2017, the delegate found the applicant failed to meet the criteria for the grant of a Temporary Protection visa.
On 28 March 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant to provide new information and submissions. No such documents were received.
The Authority summarised the applicant’s claims and evidence. The Authority had regard to the material referred by the Secretary under s 473CB of the Act.
The Authority noted that at the temporary protection visa interview, the applicant was asked why he could not relocate to avoid the attention of the TMVP and the applicant maintained wherever he lived he would not be able to keep silent and the problem would be the same. The Authority found there was a real chance the applicant would be targeted for serious harm by the TMVP if he returned to his home district. The Authority referred to the requirement under s 5J(1)(c) of the Act that the real chance of persecution must relate to all the areas of the receiving country. The Authority was not satisfied there was a real chance the applicant would face serious harm outside of his home area.
The Authority was not satisfied the applicant has a profile such that the TMVP would have any interest in the applicant outside of his home area. The Authority was satisfied the risk of harm to the applicant is confined to his home area. The Authority was not satisfied the applicant was of any broader interest to the TMVP such that they would seek to find him or harm him outside his home area such as in a major city like Colombo.
The Authority was not satisfied the applicant will face a real chance of serious harm from the Sri Lankan authorities or opponents of the TNA due to his having a pro-TNA political opinion now or in the reasonably foreseeable future. The Authority did not accept there is a real chance of the applicant being seriously harmed on this basis in all areas of Sri Lanka.
The Authority noted the applicant stated he was not involved with the Liberation Tigers of Tamil Eelam (“LTTE”) and had not claimed any links to the LTTE. The Authority was not satisfied the applicant faces a real chance of serious harm from the Sri Lankan authorities due to an imputed pro-LTTE or anti-Sri Lankan government political opinion due to his being Tamil and/or his residence in a former LTTE controlled area.
The Authority referred to discrimination against Tamils and was not satisfied the applicant would be subject to discrimination or economic hardship which would threaten his capacity to subsist or other treatment that may be regarded as serious harm for the purpose of s 5J(5) of the Act.
The Authority referred to the applicant’s illegal departure and found there is not a real chance the applicant would face a period of detention or imprisonment. The Authority found the questioning and detention the applicant may experience would be brief and would not constitute serious harm as defined in the Act.
The Authority was satisfied any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure would not constitute persecution for the purpose of the Act. The Authority was not satisfied the applicant faces real chance of serious harm due to being a failed asylum seeker.
The Authority considered the applicant’s claims individually and cumulatively and found the applicant does not meet the requirements in the definition of refugee in s 5H(1) of the Act and found that the applicant does not meet the criteria in s 36(2)(a) of the Act.
The Authority turned to the issue of complementary protection and in particular the raising with the applicant of the issue at the interview whether he could relocate elsewhere. The Authority referred to the applicant being educated and having considerable work experience as a teacher. It was in these circumstances the Authority found there is no obvious reason why the applicant could not relocate to another area where the risk of harm to him from the TMVP is not present, such as a major city like Colombo.
Having regard to all the circumstances, including the applicant’s personal circumstances and current country information, the Authority was satisfied that it would be reasonable for the applicant to relocate to Colombo to avoid any significant harm that he may encounter if he were to return to live in his home region.
It was in those circumstances that the Authority was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant will suffer significant harm.
The Authority found the applicant does not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
These proceedings were commenced on 21 August 2017. The proceedings were brought four days outside the 35 day period required for the bringing of proceedings under s 477 of the Act and accordingly requires an extension of time. The application seeks an extension and complies with requirements of s 477(2) of the Act
In these circumstances the general principles to be applied by the Court in that regard are first, whether the applicant has a satisfactory explanation for the delay, second, whether there is any particular prejudice to the first respondent, and thirdly the merits of the application and whether there is a sufficiently arguable case to make an extension of time necessary in the interest of the administration of justice. The assessment is preliminary one at an impressionistic level that is to be carried out by the Court in relation to the merits of the grounds of the application. The Court also takes into account that there is no right of appeal from an order dismissing the application for an extension of time.
At the commencement of the hearing the Court explained to the applicant the nature of the hearing under s 477 of the Act and the applicant confirmed that he understood the nature of the hearing as explained by the Court.
From the bar table the applicant maintained that the reason for the delay was because of his financial difficulty in paying the Court filing fee. The delay of four days is not substantial and the first respondent has pointed out that the applicant could have sought a waiver in respect of the fee. The explanation is not entirely satisfactory but if there were otherwise merits in the grounds of the application, the Court would extend time under s 477 of the Act. The difficulty in the present case is that the merits are wanting in the grounds advanced by the applicant.
The proposed grounds
The proposed grounds in the application are as follows:
1. Immigration Assessment Authority made a jurisdictional error.
2. The applicant family had lengthy involvement with LTTE.
3. If he send back he will be persecuted.
Proposed ground 1
Proposed ground 1 is a bare assertion of error that is not capable of making out any arguable case of jurisdictional error. The Authority’s reasons on their face correctly identify the relevant law and make findings as summarised above that were open on the material before the Authority. The Authority’s reasons are logical and reasonable and dispositive of the applicant’s claims. Proposed ground 1 lacks sufficient merit to make necessary an extension of time in the interests of the administration of justice.
Proposed ground 2
Proposed ground 2 refers to the applicant’s family having lengthy involvement with the LTTE. It is not apparent any such claim was advanced before the Authority and indeed the Authority’s reasons, as referred to above, identify that the applicant stated he was not involved with the LTTE and does not claim any links to the LTTE. A claim that was not raised and did not fairly arise on the material before the Authority cannot give rise to jurisdictional error. In these circumstances the proposed ground 2 lacks sufficient merit to make necessary an extension of time in the interests of the administration of justice.
Proposed ground 3
Proposed ground 3 is an assertion of persecution that, in substance, takes issue with the adverse findings by the Authority. The Authority’s adverse findings were open for the reasons given by the Authority as summarised above. Those adverse findings cannot be said to lack an evident and intelligible justification. It is apparent that the issue of relocation was raised at the Temporary Protection visa interview with the applicant and that the applicant had an opportunity to engage with that issue.
The applicant’s assertion that he will be subject to persecution in substance invites this Court to engage in impermissible merits review. This Court does not have power to review the merits. Proposed ground 3 lacks sufficient merit to make necessary an extension of time in the interests of the administration of justice.
Applicant’s submissions
From the bar table, the applicant referred to the current state of his own country and maintained that he could not go back. The applicant’s submission in that regard did not identify any arguable case of jurisdictional error in the decision or review conducted by the Authority. Nothing said by the applicant identified any basis upon which the Court could be satisfied that it is necessary in the interests of the administration of justice to extend time under s 477 of the Act.
Conclusion
In all the circumstances, taking into account the applicant’s explanation for the delay and the want of merit in relation to the substantive application, the Court is not satisfied that in the present case an extension of time is necessary in the interests of the administration of justice under s 477 of the Act.
Accordingly, the application for an extension of time under s477 of the Act is dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 14 December 2018
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