ECJ17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

ECJ17 v Minister for Home Affairs [2019] FCA 2121

Appeal from: Application for extension of time:  ECJ17 v Minister for Immigration and Border Protection [2018] FCCA 3228
File number: WAD 442 of 2018
Judge: BANKS-SMITH J
Date of judgment: 20 December 2019
Catchwords: MIGRATION - application for extension of time to appeal - unauthorised maritime arrival - fast track review - where Authority rejected claims as to bomb blast outside applicant's home - where generalised claim that Authority failed to engage in intellectual process - where no error disclosed - where delay in provision of reasons explained delay but the proposed grounds of appeal reveal no sufficient prospect of success - where application to adduce new evidence refused - application dismissed
Legislation:

Evidence Act1995 (Cth) ss 55, 56

Migration Act 1958 (Cth) ss 5H, 36, Part 7AA

Federal Court Rules 2011 (Cth) r 36.03
Cases cited:

AIM15 v Minister for Immigration and Border Protection [2017] FCA 734

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344

Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

MZXHY v Minister for Immigration and Citizenship [2007] FCA 622

MZYXS v Minister for Immigration and Citizenship [2013] FCA 614

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Singh v Minister for Immigration and Border Protection [2017] FCAFC 195

SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399
Date of hearing: 25 February 2019
Date of last submissions: 7 March 2019 (First Respondent)
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 68
Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter
Counsel for the First Respondent: Ms A Ladhams
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

WAD 442 of 2018
BETWEEN:

ECJ17

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

BANKS-SMITH J

DATE OF ORDER:

20 DECEMBER 2019

THE COURT ORDERS THAT:

1.Application for an extension of time to appeal and leave to adduce new evidence refused.

2.The applicant pay the first respondent's costs to be assessed if not agreed.

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


REASONS FOR JUDGMENT

BANKS-SMITH J:

  1. The applicant seeks an extension of time to appeal from a decision of the Federal Circuit Court of Australia.  The…

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Details
Case
[2019] FCA 2121
Decision Date

CaseChat Overview and Summary

ECJ17, an individual who arrived in Australia by boat and sought protection as a refugee, has applied for an extension of time to appeal against the Minister for Home Affairs' decision to refuse him a visa. The primary judge dismissed the application, and the applicant now appeals that decision. The applicant, who is self-represented, claims that he fears persecution in Sri Lanka due to his alleged affiliation with the Liberation Tigers of Tamil Eelam (LTTE) and a bomb blast outside his home. The primary judge rejected the applicant's claims and found that he had no real prospect of success on appeal.

The primary legal issue before the court was whether the applicant had a real prospect of success on appeal from the primary judge's orders. The court considered the proposed grounds of appeal, which were expressed at a very general level, and the applicant's submissions. The court found that the Authority had adequately addressed the applicant's claims and provided logical reasons for its findings. The court also rejected the applicant's application to adduce new evidence, including a medical report and a bundle of letters, on the basis that the evidence was not relevant to the assessment of the probability of the existence of a fact in issue in the proceeding.

The court held that the proposed grounds of appeal did not have any merit or a reasonable prospect of success. The court found that the Authority's reasons revealed that it had considered the applicant's claims, but disbelieved him due to inconsistencies in his accounts and the prevalence of document fraud in Sri Lanka. The court also found that the new evidence did not establish jurisdictional error on the part of the Authority or error on the part of the primary judge. The court dismissed the application for an extension of time to appeal and leave to adduce new evidence and ordered the applicant to pay the Minister's costs.

In summary, the court found that the applicant had no real prospect of success on appeal from the primary judge's orders and dismissed the application for an extension of time to appeal and leave to adduce new evidence. The court held that the Authority had adequately addressed the applicant's claims and provided logical reasons for its findings, and that the new evidence was not relevant to the assessment of the probability of the existence of a fact in issue in the proceeding. The court ordered the applicant to pay the Minister's costs.

Orders

Orders of the court

1. Application for an extension of time to appeal and leave to adduce new evidence refused.

2. The applicant pay the first respondent's costs to be assessed if not agreed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I am cognisant that the proposed appeal grounds are to be considered in that context. This is not the determination of an appeal. However, it is necessary in order to consider whether the appeal ground could be said to have any merit or any reasonable prospect of success to set out the background to the claim in some detail in order to understand the applicant's contentions.New evidence Additionally, at hearing, the applicant sought to rely on new evidence. I have refused the application to rely upon the new evidence and provide my reasons as to that application below.The applicant's protection claims The applicant claims to fear harm in Sri Lanka on the basis that he is on a special list of Tamil Muslims suspected of having connections with the Liberation Tigers of Tamil Eelam (LTTE). The applicant was a fisherman. He claims that his village was under the control of the LTTE, and he was required, along with other fishermen, to pay tax. The applicant was nominated to collect the money from other fishermen and to act as a messenger between the Sri Lankan Army and the LTTE. He claims that after the war, paramilitary groups were formed to locate suspected LTTE supporters, and that in 2011 he was told that he should be careful. The applicant claims that in March 2012 the army built a fishing harbour which was perceived as an attempt to settle Singhalese fishermen in the area. In response, the applicant spoke at a protest and was perceived as standing up to the government. The applicant claims that later that month a bomb was detonated outside his house at 8pm at night. He believes a Muslim paramilitary group was calling his name. The following morning, the applicant complained to the police, but they did not believe it was a paramilitary group. In support of his claims, the applicant provided a complaint made at a police station stating that the applicant supported the Sri Lanka Muslim Congress, that an opponent was very angry at him, and that a bomb was set off at midnight on 24 June 2012. He also provided an affidavit from his wife affirming that he was a supporter of the Sri Lanka Muslim Congress and that their house was bombed on 24 June 2012, and a letter from a Fishermen's Co‑op Society confirming that he had been a fisherman for a long time.The Authority's findings The Authority accepted that the applicant worked as a fisherman. However, having regard to an article from May 2012, the Authority rejected his claim that he was involved in a protest in March 2012. The Authority did not accept that a bomb was thrown at the applicant's house. It noted the inconsistency in time and date between the applicant's statements, his statutory declaration and that of his wife, and the police report, and considered the inconsistencies to be significant in light of the prevalence of document fraud in Sri Lanka. The Authority rejected the applicant's claim that he would face harm because of an imputed pro‑LTTE or anti‑government political position. It noted that he was a Muslim, and Muslims had generally sided with the government during the war; that successive army groups in his area had realised his role in the LTTE was done under duress; that he had no issues with the Sri Lankan authorities since 2004; and he has family members who work for the Sri Lankan government.

Decision

Reasons for decision

In my view the Authority quite clearly addressed the applicant's complementary protection claim and gave logical reasons that supported its findings. As the issue of allegedly inadequate reasons was not raised below, leave would be required to raise it on any appeal. I do not consider there is any prospect that leave would be granted, as the ground has no prospect of success.Conclusion For the above reasons, and having had careful regard to the claims that, expressed at their highest, might be pursued by the applicant, I do not consider that he has any real prospect of success on an appeal from the primary judge's orders. Accordingly, even accepting that the primary judge's delay in providing reasons explained in large part the relevant delay, it is not appropriate that an extension of time be granted and the application is dismissed.New evidence The applicant sought to rely on evidence that was not before the Authority. The Minister opposed the admission on the basis of s 55(1) and s 56(2) of the Evidence Act1995 (Cth). These sections provide, in effect, that evidence is not admissible unless, if accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. First, the applicant sought to adduce a medical report providing that he had undergone three kidney operations in Australia. He submits that this is relevant to his visa application because he may have to undergo another kidney operation, and Sri Lanka lacks the necessary facilities for him to undergo such an operation. The medical report is dated 12 September 2018 and therefore postdates the Authority's decision of 18 August 2017. Additionally, there is no evidence on the face of the Authority's decision to suggest that the applicant's medical issues relating to his kidney were before the Authority. The primary judge's findings (at [22]) are consistent with an absence of any such material. The applicant has not established otherwise. The Minister submits that because it is no jurisdictional error for the Authority to fail to have regard to evidence or claims that were not before it, the medical report, if accepted, could not affect this Court's finding on whether the Authority committed jurisdictional error. I accept this submission and so refuse the application to rely on the new medical evidence. I sympathise with the applicant's serious concerns as to his ill‑health, but his ill‑health does not establish jurisdictional error on the part of the Authority or error on the part of the primary judge. Second, the applicant sought to adduce a bundle of six letters ranging in date from 29 August 2018 to 15 October 2018, and that relate to a new incident that allegedly occurred in August 2018. He submitted that these letters help explain the situation in Sri Lanka at the present time. The applicant appears to rely on these letters as evidence refuting the factual finding made by the Authority that the applicant does not face a real chance of serious harm or a real risk of significant harm if he were to be returned to Sri Lanka.

Ratio Decidendi

Legal Principle Established

It can be seen that the appeal grounds are expressed at a very general level. The applicant is self‑represented and I have taken that into account, together with his oral submissions, in assessing whether those generalised grounds might obfuscate an argument that the applicant might properly have grounds to pursue.ConsiderationGround 1 The applicant submitted at hearing that he was involved in a bomb blast and the Authority failed to consider a police report he provided as to the alleged blast. This would appear to fall within the ambit of proposed ground 1. The Authority's reasons reveal it considered this issue, but disbelieved the applicant. It stated as follows:21.I do not accept that a bomb was thrown at the applicant's house. The accounts provided by the applicant contain multiple inconsistencies:•In the entry interview, the applicant stated that the bomb was thrown at the house at 8 pm. However, in the police report provided by the applicant, he claimed that the bomb was thrown at midnight.•In his statutory declaration, the applicant stated that the bombing took place in March 2012. However, in the police report and the affidavit of the applicant's wife, it is recorded that the bombing took place on 24 June 2012.22.I consider these inconsistencies to be significant. In these circumstances, I consider that the applicant has fabricated his claims of a bombing so as to create a basis for his protection claims.23.I note that the DFAT report in the referred material makes the following comments on document fraud:DFAT assesses that document fraud is prevalent in Sri Lanka. Most official records in Sri Lanka continue to be kept in hard-copy format: government departments lack computerised information databases. Genuine identity documents can be obtained by submitting fraudulent supporting documents. Counterfeit documents are the primary cause of fraud within the issuance process for the NIC, passport or driver's licence. DFAT is aware of fraudulent sponsor letters and employment letters being presented by asylum seekers. Land title deeds that have been fraudulently obtained have also been presented as evidence of an individual's financial situation.Attempts to use fraudulent documents are common and other asylum destination countries have reported receiving fraudulent documentation from asylum applicants, including anecdotal reports of a photography studio that took photos of individuals in old LTTE uniforms for use in asylum seeker applications. DFAT cannot verify the credibility of these reports.24.Given the inconsistencies between the accounts provided by the applicant on the one hand, and the police report and his wife's affidavit on the other hand, and given the prevalence of document fraud, I place no weight on either of those documents.25.For completeness, given that the applicant claimed in his statutory declaration that a bomb was thrown at his house in March 2012, I do not accept that the applicant would have made a complaint to the police in which he stated that the bombing took place on 24 June 2012. Therefore, I do not accept the claim raised in the IAA submissions that the applicant would face persecution for a false police report in circumstances given that I have not accepted that such report was ever made. I consider that the police report is a fraudulent document produced for the purposes of strengthening the applicant's claims.26.The DFAT country report indicates that the military restricts access to some of the more abundant fishing areas. I do not accept that the applicant will be unable to find work as a fisherman if he returns to Sri Lanka, albeit the work he finds may be not as economically beneficial as fishing at the more abundant fishing areas. I do not consider the harm arising from any such discrimination would be so serious as to be serious harm when having regard to the non‑exclusive instances of serious harm s.5J(5).