DVA16 v Minister for Immigration

[2018] FCCA 550

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVA16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 550

Catchwords:
MIGRATION – Application for extension of time – judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: DVA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2700 of 2016

Judgment of: Judge Riethmuller

Hearing date: 5 February 2018

Date of Last Submission: 5 February 2018

Delivered at: Melbourne

Delivered on: 5 February 2018

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application for an extension of time be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2700 of 2016

DVA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 January 2016.  The Tribunal affirmed a decision of the delegate to refuse to grant the applicant a protection visa. 

2. The applicant arrived in Australia as an unauthorised maritime arrival from Sri Lanka on 28 July 2012.  On 28 February 2013, the applicant applied for a protection visa.  On 24 July 2014, the applicant applied to the Tribunal for a review of the delegate’s decision refusing to grant him a visa.  On 22 December 2015, the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of a Sinhalese interpreter.  On 8 January 2016, the Tribunal affirmed the delegate’s decision not to grant him a visa.

3. The applicant’s main claim relates to harm that, the applicant says, he fears from the United National Party, where, he says, he worked as a political activist and received death threats from opposition supporters.  The applicant made various claims about events that occurred in connection with his political activities and with respect to fellow campaigners.  The applicant also made claims that he feared harm from other persons and his father and various people who are members of the Sri Lankan Freedom Party. 

4. In its decision, the Tribunal rejected the applicant’s credibility and did not accept his claims.  Extensive inconsistencies in the applicant’s evidence are set out in the Tribunal’s decision.  The applicant sought to explain these inconsistencies, in part, because the applicant had become a drug addict since coming to Australia.  The Tribunal had regard to this claim in assessing his credibility.  The extent of the credibility findings is well‑summarised in the Minister’s Submissions at [12] to [19], as follows:

   12. The Tribunal did not accept that the applicant was a member of the UNP, or an active supporter of that party: CB 177 at [16]. It noted, among other things, that the applicant told the delegate that he became a member in 2005. However, he told the Tribunal that he did "not join the UNP as a member": CB 177 at [17]. It also noted that according to the applicant's evidence at hearing and his evidence to the delegate, the applicant's role was working in a group with other members to rally the people, canvass support, put up posters and decorate the stages for meetings during the election time: CB 178 at [17]. The Tribunal further noted that the applicant was unable to tell the Tribunal what type of election was held in 2006 or when in 2006 it was held. It also noted that he told the delegate that he participated in three elections, but told the Tribunal that he had only participated in two. He also initially told the Tribunal that he had not participated in any political activities outside the two elections, but then later claimed that he helped his uncle contest a different election but could not recall what kind of election that was: CB 178 at [18].

   13. The Tribunal considered but rejected the applicant's explanation as to why he could not remember what elections he participated in. The applicant claimed that he had become a drug addict since coming to Australia and had taken cannabis, heroin and ice. The Tribunal noted that it had received an email from the applicant's previous lawyer which stated that the applicant was addicted to drugs. It also considered photographs on the applicant's phone of what he claimed were pharmaceutical prescriptions. However, the Tribunal noted that the image was illegible and given its concern regarding the applicant's credibility generally, and those of his claims, it did not accept that the applicant had a drug addiction and that this has affected his memory or ability to recall his personal experiences upon which his application was based: CB 178 at [19].

   14. The Tribunal also placed little weight on supporting letters provided by the applicant which stated that the applicant was an ardent supporter of the UNP and fulltime political activist. It noted the letters were inconsistent with the applicant's own evidence: CB 178 at [20).

   15. As the Tribunal did not accept that the applicant was an active supporter or member of the UNP, it did not accept that he received death threats from opposition supporters or that he had experienced any problems during elections: CB 179 at [22). It also did not accept the applicant's claim that two UNP supporters had disappeared in 2007 based on the vague and limited evidence provided by the applicant regarding the alleged disappearance of these men. For example, the applicant had been unable to provide any evidence about the disappearances and had stated at the hearing that he had made an assumption based on a rumour of kidnapping: CB 179 at [23].

   16. The Tribunal also noted the significant inconsistencies and implausibility about the applicant's claim regarding the death of his friend, which resulted in him allegedly opposing Surath Kumar Gunaratne's son and his gang people, which was the basis of his primary fear. The applicant was unable to tell the Tribunal how he knew about the attack in 2010 and suggested that it may have been through other people that he got to know about it, whereas the applicant told the delegate that he was told by one of the men who were attacked: CB180 at [24]-[25]. Based on the issues it identified, the Tribunal did not accept that the applicant was a member or supporter of the UN and that he actively supported the party during any elections in Sri Lanka. It also rejected the applicant's claim that he would be harmed by the former Minister Surath Kumar Gunaratne or his son or anyone else because of his opposition to the alleged killing of his friend: CB 180-181 at [26]-[30].

   17. The Tribunal also rejected the applicant's evidence that he would support Janatha Vimukthi Peramun if he returned to Ski Lanka given the vagueness of this claim and given that it had not been raised earlier: CB 181 at [31].

   18. The Tribunal noted that the applicant had confirmed at the hearing that he did not fear harm for any other reason. However, it went on to consider whether he would face harm because of his illegal departure from Sri Lanka: at [32]. It relied on DFAT country information to find that the applicant would likely be charged for his illegal departure but would only face a short period on remand and would likely only face a fine as a penalty. It found that the law under which the applicant would be charged was a law of general application and that the applicant's family, who remained in Sri Lanka, would assist him financially to pay a fine: CB 181-182 at [32]-[35].

   19. Under the rubric of complementary protection, the Tribunal also considered the applicant's illegal departure. The Tribunal noted that due to the applicant's illegal departure from Sri Lanka, there is a possibility that he may be subject to a lawful penalty. Whilst the Tribunal accepted that he may be detained briefly and he will face a penalty, the Tribunal did not accept that the applicant faces a real risk of being significantly harmed. Although sources suggested that prison conditions in Sri Lanka are poor, the Tribunal did not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation. Further, the Tribunal found based on country information that any treatment the applicant may face upon return to Sri Lanka, including a fine and detention and poor prison conditions, would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this was a risk faced by the population generally and not the applicant personally, under s.36(2B)(c) it was taken not to be a real risk that the applicant will suffer significant harm: CB 183 at [40]-[41].

5. The Tribunal also considered what penalty he may face as a result of his illegal departure from Sri Lanka, concluding:

   35. The Tribunal refers to the country information it put to the applicant in the hearing that under Sri Lankan law, people who depart from any place other than an approved port of departure and/or without valid travel documents can be charged with an offence under the Immigrants and Emigrants Act. As the Tribunal put to the applicant in the hearing, this law is a national law and there is nothing in the information before it to suggest that the law is applied selectively or discriminatively or that it is discriminatory in its terms. The Tribunal therefore finds that what the applicant will face (i.e questioning, charge, remand, conviction and punishment through the imposition of a fine) on return to Sri Lanka would be the result of the nonselective enforcement of a law of general application and therefore does not amount to persecution under s.91R(1)(c).

6. The Tribunal, therefore, found that the applicant was not entitled to a protection visa for a Convention reason or under the complementary protection provisions.

Ground for Review

1. The applicant sets out one ground for judicial review in the following terms:

   I provided evidence and gave oral submissions to the AAT in relation to my political involvement in Sri Lanka.  I have been a supporter of UNP and as a result I did suffer abuse and threats in the hands of my political opponents.  I fear persecution upon return to my home country.  Further as a failed asylum seeker I will be prosecuted by the Sri Lankan Government authorities.  I provided evidence to that regard.  Such evidence has not been considered by the honourable tribunal member.  Accordingly AAT failed to give consideration to the evidence as a matter of law.

2. The ground alleges that the Tribunal failed to have regard to evidence that was provided to it.  Registrar Allaway made orders on 7 June 2017 for the applicant to file an outline of argument and any further material.  The applicant has filed nothing in addition to his initial affidavit and application. 

3. At the hearing before me, I asked the applicant to outline what additional evidence or other evidence he says the Tribunal failed to have regard to and the applicant was unable to do so.

4. The applicant sought an adjournment for three months on the basis that an unnamed lawyer had told him it would take three months to look into his case and decide whether he had a claim.  There is no evidence of a particular lawyer agreeing to undertake any work in the case.  The applicant has had a very long time since the original decision to pursue his application.  The applicant is unable to articulate even the most‑rudimentary or simple basis for his claim, such as identifying a piece of evidence that, he says, was not taken into account by the Tribunal. 

5. I am not persuaded that the applicant has established appropriate grounds for an adjournment of this application.

6. I turn then to consider whether or not the applicant should be granted an extension of time to bring the application.  The Tribunal decision was made on 8 January 2016.  The 35-day time limit for applying for judicial review expired on 12 February 2016.  The applicant did not bring his proceedings until 10 months later, in December 2016.  In his application, he sets out grounds for an extension of time as follows:

   1. I was self-represented at the Refugee Review Tribunal and aftermath of same.

   2. I was financially not capable of instructing a lawyer or a migration agent to represent me.

   3.  I am from a none English speaking background and cannot read good English and barely managing my day to day affairs in English.

   4. I am not able to read and understand legislation.

   5. Since I was not represented at the RRT and subsequent to the decision, I was completely and fully unaware that a Federal Circuit Court Judicial Review Application must be filed within 35 days.

   6. No one provided me any advice relating to same and I was incapable of seeking such advice.

   7. It was only recently when I sought legal advice that it was advised to me.

   8.  Accordingly, I could not file the judicial review application at the Federal Circuit Court of Australia within 35 days of the RRT decision. 

7. Whilst an explanation for a delay may be significant in some cases, in refugee or protection visa applications, ordinarily the significant question is whether or not there is an arguable ground for review.  That is, if a person has an arguable ground for review it is likely that an extension would be granted, even if they have little or no explanation for the delay. 

8. In this case, the applicant has been unable to articulate anything that would show an arguable ground for judicial review.  The first four sentences of the applicant’s ground simply seeks a merits review of the Tribunal’s decision.  Whilst the last part of his ground for review appears to identify a theoretically good ground based on the failure to consider evidence, the applicant is unable to point to any piece of evidence that, he says, the Tribunal member failed to consider. 

9. In the circumstances, I, therefore, dismiss the application for an extension of time.

   [Further argument ensued]

10. The Minister seeks the legal costs of the proceedings on the basis the Minister has succeeded.  They are seeking $6000.

11. It seems to me that the Minister has been entirely successful.  The costs sought by the Minister appear reasonable. They are less than the Court scale.  I will order the applicant to pay the Minister’s costs fixed at $6,000.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  7 March 2018