Ebw16 v Minister for Immigration and Border Protection
[2018] FCA 382
•9 March 2018
FEDERAL COURT OF AUSTRALIA
EBW16 v Minister for Immigration and Border Protection [2018] FCA 382
Appeal from: Application for extension of time: EBW16 v Immigration Assessment Authority & Anor [2017] FCCA 2082 File number: QUD 490 of 2017 Judge: LOGAN J Date of judgment: 9 March 2018 Catchwords: MIGRATION – application extension of time – country information at time of judgment – alleged error – discussion between primary judge and counsel not part of reasons for judgment – no error found – application dismissed. Legislation: Federal Court of Australia Act (Cth)
Migration Act 1958 (Cth)
Date of hearing: 9 March 2018 Date of last submissions: 6 March 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Applicant: Mr S Barataraj Counsel for the Respondents: Ms A Wheatley Solicitor for the Respondents: Clayton Utz ORDERS
QUD 490 of 2017 BETWEEN: EBW16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
9 MARCH 2018
THE COURT ORDERS THAT:
1.The application for an extension of time to file an appeal be dismissed.
2.The applicant pay the first respondent’s costs, of and incidental to the application, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised From Transcript)LOGAN J:
The applicant is a citizen of Sri Lanka. More particularly, he is a Tamil from that country’s Eastern Province. On 27 June 2016, he applied to the Minister for Immigration and Border Protection for that class of visa under the Migration Act 1958 (Cth) known as a Temporary Protection Visa (Subclass 785) (Protection visa). His claim was that he feared harm from political opponents because he supported the Tamil National Alliance in the 2012 election, and from the Sri Lankan authorities because he is a Tamil. On 14 October 2016, a delegate of the Minister refused to grant the applicant the visa which he sought.
That refusal decision came to be reviewed by the Immigration Assessment Authority (the Authority). On 28 November 2016, the Authority affirmed the decision of the Minister’s delegate not to grant to the applicant a Protection visa. The applicant then filed for the judicial review of the Authority’s decision by the Federal Circuit Court on 23 December 2016. That court dismissed with costs the applicant’s judicial review application on 28 August 2017.
On 24 September 2017, the applicant filed in this Court an application for an extension of time within which to appeal against the order of dismissal made by the Federal Circuit Court. An extension of time is necessary because the applicant missed by a few days the time within which an appeal against a judgment of that court could be instituted as of right.
The Minister does not gainsay that there has been an adequate explanation provided by affidavit by the applicant in respect of the delay in seeking to challenge the Federal Circuit Court’s judgment. Those circumstances deposed to include the applicant’s relative impecuniosity and a related need to put in funds his advisors. Not every case where that occurs would warrant an extension. It behoves those who seek to challenge judgments of the Federal Circuit Court to pay attention to the rules of this court in relation to times and to the provision in that regard in the Federal Court of Australia Act (Cth). Even so, the Minister’s position is in the circumstances a very fair one on the subject of adequate explanation.
The real question today is whether or not it can be said that the proposed grounds of appeal enjoy sufficient prospects of success to warrant the granting of an extension of time. It is emphatically not the case that grounds, which might be regarded as arguable, should be subjected to the degree of scrutiny to which they would on a substantive appeal. An extension of time application ought not to be regarded as a substitute for an appeal. Equally though, if grounds are obviously untenable, there is no point in the granting of an extension of time no matter how adequate the explanation for delay may be.
There is not in this case, as a practice of the Court would usually require, a draft notice of appeal setting out the proposed grounds of appeal. Rather, those grounds are set out in the outline of submissions filed on behalf of the applicant. The proposed grounds are expressed with some prolixity. In essence, each of the two grounds takes up an alleged error on the part of the primary judge in focusing on the temporal position in respect of a return by the applicant to Sri Lanka at the time when the judicial review application was heard and determined in 2017.
Ground 3 of the grounds of review before the Federal Circuit Court was expressed this way; the Minister erred in not taking into consideration relevant country information in making the decision and thereby failed to consider the applicant under the complementary protection provisions given his statutory declaration of February 2016.
Particulars
The applicant had provided reference of articles that supported his application. None of these articles were referred, commented upon, or disputed by the first respondent in making the adverse decision.
[I interpolate that the first respondent in the proceeding before the Federal Circuit Court was the Authority.]
Of this ground, the primary judge observed at para 32:
32.The material that the applicant provided was country information and did talk about how things were back in 2012.
His Honour continued at paras 33 and 34:
33.This information about Sri Lanka in 2012, may go to the experiences of the Applicant. However, what is more important is to look at what would happen to the applicant if he were returned to Sri Lanka? The information, as I have already alluded to, that he would be, at most, jailed for two days upon his return whilst bail niceties were sorted out, but most probably he would simply be fined there and then and a payment plan entered into and he would be free to go.
34.That is the country information that is recent, relevant and credible. The information that the Applicant was putting before the IAA had none of those attributes and really, did not do anything that would suggest that the country information relied upon by the IAA was not the sort of information that ought to have been relied upon.
On this basis, his Honour dismissed Ground 3.
In the course of submissions earlier that day (see transcript p 13), there was an exchange between the learned primary judge and Mr Barataraj of counsel who then, as now, has appeared for the applicant. The exchange related to the third ground of review. Materially, the exchange was as follows:
MR BARATARAJ: He can only rely on the country information, your Honour. There’s nothing else …
HIS HONOUR: Yes, but the country information is now that this doesn’t happen. It may have happened in 2012, but it doesn’t happen in 2017.
MR BARATARAJ: But - again, that is new information again. The - 2012 when he came, your Honour, that is what has happened. All right. And he mean it, because he - - -
HIS HONOUR: Yes. But it doesn’t matter. It’s what happens now. If he were to return to Sri Lanka now, there’s no proof at all that this is what would happen to him. In fact, the whole country information is that he would get a fine and that’s it. That’s what the country information is not.
MR BARATARAJ: That - of course, that’s what they’re saying, but then there is a lot of information there - people get there – just disappear. It’s - - -
HIS HONOUR: Well, where is that? There’s nothing that that sort of action - activity is occurring now. There’s no evidence that that activity is happening now. All the evidence, all the country information says this, that really since the election of the government in 2015, it has all changed. That’s what the country information is.
There was no endeavour either on the part of the applicant, or for that matter, the Minister, to introduce before the Federal Circuit Court evidence as to the position in 2017 in Sri Lanka in respect of returnees. That absence of endeavour is unsurprising because, in the circumstances of the jurisdiction being exercised by the Federal Circuit Court, such information would have been utterly irrelevant. That court was engaged in judicial review of an administrative decision, not in the making on the merits of a decision in respect of whether or not the applicant should either be granted a Protection visa or whether circumstances existed such that complementary protection was appropriate.
Had the exchange between the learned primary judge and Mr Barataraj stood as that court’s reasons for judgment, there would be much to be said in favour of the point sought to be agitated by the applicant, for the exchange could be read as indicative of a misunderstanding of function on the part of the learned primary judge for the reason just given. But the exchange did not stand as the court’s reasons for judgment. Those reasons pertinently have already been extracted.
It may, with respect, be in para 33 that there is some looseness of language, but any doubt as to the focus by his Honour and his Honour’s related understanding of his role is put to rest by para 34. The focus there is undoubtedly on the country information before the Authority and the use made by the Authority of that information.
It appears that the Authority did nothing more than, by reference to information as to the position in 2016, make a predictive value judgment as to what would happen to the applicant in the event of his return to Sri Lanka. That led the Authority to be satisfied that no case for country information was made out. The Authority was entitled to reach that satisfaction on the basis of the information before it.
It only comes to this. The point sought to be agitated is one which relies upon either, at most an error of understanding or perhaps nothing more than an error of reference in an exchange with counsel. It does not indicate that the reasons for judgment were so infected. There is no prospect of demonstrating, in respect of the grounds sought to be agitated, error of law on the part of the primary judge. For these reasons, the application will be dismissed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 17 April 2018
0
0
2