Eiw20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 311
•2 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EIW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 311
File number: PEG 286 of 2020 Judgment of: JUDGE LADHAMS Date of judgment: 2 December 2021 Catchwords: MIGRATION – Application for extension of time – reasonable explanation for short delay – no prejudice to respondents – no realistic prospect of success when merits assessed at reasonably impressionistic level – extension of time refused. Legislation: Migration Act 1958 (Cth), ss 5AA, 5H(1), 36(2)(a), 36(2)(aa), 46A, 65, 473CA, 473DD, 476, 477
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 2.05(4), 29.05(2)(c), 44.05(2)(c)
Federal Circuit Court Rules 2001 (Cth), rr 2.05(3), 44.05(2)(c)Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475; [2020] FCAFC 127
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 186
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59Division: Division 2 General Federal Law Number of paragraphs: 69 Date of hearing: 8 September 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Ms C Taggart Second Respondent Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 286 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EIW20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
2 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application for an extension of time is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
Before the Court is an application filed on 30 September 2020 pursuant to ss 477(2) and 476 of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks an extension of time to file an application for judicial review of a decision made by the Immigration Assessment Authority (Authority) on 25 August 2020. The Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
For reasons explained below, I am not satisfied that it is in the interests of the administration of justice to make an order to extend the time for the applicant to file his application for judicial review. While I accept that the delay is short and adequately explained, and there is no substantive prejudice to the Minister as a result of the delay, the merits of the proposed substantive application have no realistic prospects of success, and in those circumstances the extension of time should not be granted.
BACKGROUND
The applicant is a citizen of Sri Lanka. He entered Australia by sea at Cocos (Keeling) Islands in October 2012 without a visa and he is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 10 December 2015 the Minister’s Department sent to the applicant an invitation to apply for a protection visa. The letter advised the applicant that the Minister had exercised the power in s 46A(2) of the Migration Act to lift the bar in s 46A(1) which had, until that time, prevented him from applying for a protection visa.
On 29 April 2016 the applicant lodged an application for a Safe Haven Enterprise Visa, which is a type of protection visa. The applicant claimed that he would face harm in Sri Lanka on account of his involvement in political activities, including supporting his uncle who contested an election as a member of the Muslim Congress party.
The applicant attended an interview conducted by an officer of the Minister’s Department on 16 September 2016 to discuss his claims for protection.
A delegate of the Minister made a decision on 5 October 2016 to refuse to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
The applicant provided a submission and four letters to the Authority under cover of an email sent on 21 October 2016.
On 7 April 2017 the Authority affirmed the decision not to grant the applicant a protection visa.
The applicant sought judicial review of the Authority’s decision of 7 April 2017 and the Federal Circuit Court made orders on 24 June 2020 which had the effect of setting aside the Authority’s decision and remitting the matter to the Authority to determine the review according to law. The written reasons of the Court are not available. The Minister, in his submissions to this Court, has provided the following explanation of the reason for the orders made on 24 June 2020:
The reason for the remittal was that certain documents the applicant had provided to the department in 2013 (CB 145-158) had not been given to the Authority as part of the review material (the non-referred documents), in contravention of the Secretary’s obligation under s 473CB of the Act, and it was possible that consideration of the
non-referred documents could have resulted in a different decision by the Authority.On 25 August 2020 the Authority, differently constituted, affirmed the delegate’s decision not to grant the applicant a protection visa.
AUTHORITY DECISION
The Authority had regard to:
(a)the material provided by the Secretary, including additional material provided by the Secretary following the orders made on 24 June 2020, other than that which was of an administrative character and not relevant to the review;
(b)a statement provided by the applicant on 21 October 2016 (dated 16 October 2016) to the extent that the statement restated the applicant’s claims for protection and reiterated his fear of harm in Sri Lanka;
(c)the four letters of support provided by the applicant on 21 October 2016; and
(d)country information which was published after the delegate’s decision, comprising an updated country information report on Sri Lanka published by the Department of Foreign Affairs and Trade (DFAT) on 4 November 2019, a US Department of State report titled ‘Country Reports on Human Rights Practices for 2019 – Sri Lanka’ dated 11 March 2020 and an article published by The Guardian titled ‘Sri Lanka’s Rajapaksa brothers strengthen grip in landslide election win’ dated 7 August 2020.
The Authority did not take into account new information provided by the applicant that it found did not meet the requirements of s 473DD of the Migration Act. This information comprised:
(a)information in the applicant’s statement dated 16 October 2016, which the Authority summarised at [9] as information that ‘the applicant had a good relationship with navy friends and thereby came to know information about the smuggling activities, the opposition party members became aware of this and lodged a complaint with the police and the police visited his family very often to collect information about the applicant’; and
(b)information about incidents in the applicant’s home area in or about October 2016.
The Authority accepted that the applicant is a national of Sri Lanka of Muslim religion who speaks and self-identifies as Tamil.
The Authority accepted that the applicant had been involved in political activities, including protesting against teacher shortages and campaigning for his uncle, who unsuccessfully contested a local election in 2011. The Authority accepted that it was plausible that the applicant’s uncle was pressured by opposition candidates to withdraw and that his supporters were harassed. The Authority further considered that it was plausible that the opposition party group was involved in illegal smuggling operations and that members of the navy, police or other officials were involved in these activities and linked to opposition party members.
The Authority accepted as plausible that the applicant, as a supporter of his uncle’s candidacy and an attendee at political rallies, got into fights with political rivals and was physically attacked. It was willing to extend the benefit of the doubt to the applicant and accept his claim that he was taken from his uncle’s home and beaten and threatened and that the police would not file a complaint. However, the Authority did not accept that the applicant would be of any ongoing interest to opposition party supporters after the 2011 election, particularly given the low-level nature of his involvement.
The Authority found that the applicant would not face a real chance of serious harm on the basis of his role in past elections, or if he were to become politically active to a similar level again in the future.
After considering country information addressing the community treatment of Muslims, the potential for reprisal attacks following the 2019 Easter Sunday terrorist attacks, and fears about the possibility that the Rajapaksa government will suppress attempts to bring human rights abusers to justice, the Authority nevertheless was not satisfied that the applicant would face a real chance of serious harm on account of his religion. This was because any attempt by the government to suppress attempts to bring human rights abusers to justice or to roll back past reforms would not impinge on the Muslim population in general or Muslims with a similar profile to that of the applicant in a way that would amount to serious harm. Further, the Authority had regard to the responses of the Sri Lankan authorities to communal violence against Muslims, such as large scale military and police deployment, blocks on instant messaging and social media, extending curfews and declaring a state of emergency.
The Authority found that there was no indication that the applicant had any links with the Liberation Tigers of Tamil Eelam (LTTE), or that he would be imputed with such links if he returned to Sri Lanka, and there was no indication that he would be involved in Tamil separatist activities. Taking into account these findings and relevant country information, the Authority was not satisfied that the applicant would face a real chance of serious harm in Sri Lanka on account of his Tamil ethnicity.
The Authority found that the applicant would not face any harm as a returning failed asylum seeker. The Authority further found that the anticipated treatment the applicant would face on return to Sri Lanka for breaching the Immigrants and Emigrants Act 1949 (Sri Lanka) would not amount to serious harm and, in any event, the law was one of general application which would not be applied in a discriminatory manner.
Based on these findings of fact, the Authority concluded that the applicant did not meet the definition of refugee in s 5H(1) of the Migration Act and therefore did not meet the requirements of s 36(2)(a). The Authority also found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) of the Migration Act as there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that he would face significant harm. This complementary protection finding was largely based on the same findings of fact relied on in relation to the Authority’s assessment under the refugee criteria in s 36(2)(a).
PROCEEDINGS BEFORE THIS COURT
The Court has before it an application for an extension of time under s 477(2) of the Migration Act and, if that application is successful, an application for judicial review under s 476 of the Migration Act. If the applicant is unsuccessful in his extension of time application, I do not need to determine the substantive judicial review application.
On 29 October 2020 a Registrar of this Court made orders to progress this matter to hearing. These orders required the applicant to file any amended application giving particulars of each ground of review by 15 January 2021 and to file submissions 28 days prior to the hearing, namely by 11 August 2021. The applicant did not file any documents in accordance with these orders, but as discussed below, he has provided documents to the Court shortly before, during and shortly after the hearing.
The matter came before me for hearing on 8 September 2021. The applicant was self‑represented at the hearing and the Minister was represented by Ms Cobey Taggart of counsel.
CONSIDERATION
Application for an extension of time
The application to this Court was filed on 30 September 2020, which is one day outside the 35 day time frame prescribed by s 477(1) of the Migration Act. The applicant has applied in writing for an order to extend the time for him to file his application, as required by s 477(2)(a) of the Migration Act.
The applicant has provided the following grounds to support his application for an extension of time:
1.I applied for e-lodgement to file my application for judicial review on the 27/9/2020 and requested that my application for e-lodgement to be approved on 28/9/2020. I attested my affidavit on 28/9/2020 and intended to file my appeal for judicial review application on 28/9/2020 but I did not receive the approval of my e-lodgement.
2.On 29/9/2020 at 12.50 pm, I emailed and filed the application and affidavit and the financial hardship application at the Perth registry but the Perth registry office replied that they only received the documents on 29/9/2020 at 8.39 pm and not 12.50pm. I am not sure what has happened but based on my send email record it shows the documents was emailed to [email protected] on 29/9/2020 at 12.50 pm. My intention was to file within the 35 days from the date of the IAA decision which I believe I did. I did not intend to file after the 35 days.
3.Based on the grounds that Immigration Assessment Authority made facts finding error, ignored relevant material and relied on irrelevant in reaching their decision and reasons on 25 August 2020 and in the interest of administration of justice, I humbly plead for the extension of time.
The applicant’s affidavit that accompanied his application does not set out the evidence explaining the delay and showing why it is in the interests of the administration of justice for the Court to grant an extension of time. This was required by r 44.05(2)(c) of the Federal Circuit Court Rules 2001 (FCC Rules), which applied at the time the applicant filed his application.[1] Nor has the applicant filed any further affidavit evidence in the course of the proceedings. In circumstances where the applicant is self-represented and has articulated in his application the reasons he considers it is necessary in the interests of the administration of justice to extend the time for him to file the application, I waive the need for him to comply with r 44.05(2)(c) of the FCC Rules and its equivalent provision r 29.05(2)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (GFL Rules).
[1] The FCC Rules were repealed with effect from 1 September 2021 and have relevantly been replaced by the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. The equivalent provision in the GFL Rules is r 29.05(2)(c). The Court’s Transitional Arrangements (PD-Transitional) FCFCOA Practice Direction provides that an act or thing that was required to be done under the FCC Rules, but which not done before the repeal of those Rules, is taken not to have been done for the purpose of the GFL Rules, where there is an equivalent requirement to do the act or thing under the GFL Rules (paragraph 2.4).
Whether an extension of time is required
At the hearing the applicant questioned whether he needed an extension of time at all. Given this, and the applicant’s assertion that he emailed the documents to the Court registry within the relevant time frame, it is appropriate to first consider whether an extension of time is required.
Based on the information the applicant provided in his grounds of application for an extension of time, he needs an extension of time. This is because, on the applicant’s case, the Registry did not receive the application until 8.39 pm on 29 September 2020. At that time, r 2.05(3) of the FCC Rules provided that if a document sent by electronic communication is accepted for filing, the document is taken to have been filed on that day if the Registry was open for business on that day and the whole of the document was received before 4.30 pm.[2] Otherwise, the document is taken to have been filed on the next day the Registry is open for business. As the Registry received the applicant’s documents after 4.30 pm on 29 September 2020, if they had been accepted for filing, they would be taken to have been filed on 30 September 2020, which is outside of the 35 days from the date of the Authority decision.
[2] The equivalent provision in the GFL Rules is r 2.05(4).
At the hearing, I asked the applicant if he had any documentary evidence to support the assertions in his application regarding his attempts to file the application. The applicant indicated he would have his emails on his phone. After the matter was briefly stood down to allow the applicant to check his emails and liaise with the Minister’s representative, the Court was provided with a copy of an email sent by the applicant to the Registry on
29 September 2020 at 9.03:32 pm AWST. The email attached an application, affidavit in support and application for financial hardship exemption. The application is slightly different to the application actually filed, as it did not include a request for an extension of time. The email does not show that the applicant attempted to file, or that the Registry received, an application within the 35 day time period.
After the hearing, the applicant emailed to my associate a further document, without the leave of the Court. This document appears to be a screenshot of an email sent from the applicant to ‘Perth Account’ on 29 September 2020 at 12.57 pm. The text of the email reads:
Dear sir/madam
I am hereby filing my application – migration act and supporting affidavit to appeal against the decision of Immigration assessment authority and also filling the application for exemption from paying court fees – financial hardship.
I had applied for e-court registration on Sunday 29/9/2020 and till to date it’s still pending approval. I had no choice but to email and file via registry. Please assist and approve my filing.
It appears from the screen shot that at least two documents were attached to this email, but it is not possible to identify those documents.
In circumstances where the applicant is self-represented and the document appears to have been provided in response to a question I asked at the hearing, I am willing to have regard to this document. However, the document does not alter my view of this case. At its highest, the document may allow an inference that the applicant attempted to provide a document to the Registry for filing on 29 September 2020 at about 12.57 pm. I was prepared to accept that the applicant took steps to file his application before 4.30 pm on 29 September 2020 in any event, on the basis of the grounds in the applicant’s application for an extension of time, even though the information in those grounds was not provided to the Court in an acceptable evidentiary form. The additional document provided by the applicant does not show that the Court registry received the whole of any application from him prior to 4.30 pm on 29 September 2020. Nor is there any other evidence before the Court that would enable me to conclude that an application was received within the 35 day time frame.
Accordingly, I find that the applicant did not file an application within the 35 day time frame. The application which was ultimately accepted for filing includes an extension of time application and was filed on 30 September 2020.
Factors usually considered in extension of time applications
The terms of s 477(2) of the Migration Act do not on their face require the Court to take into account or ignore any particular factor when determining whether it is in the interests of the administration of justice to make an order extending the time for the applicant to file an application: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475; [2020] FCAFC 127 (DHX17) at [65]. Ordinarily, the Court will have regard to factors such as the length of the delay, the explanation for the delay, any prejudice that the respondents would face and the merits of the proposed substantive application: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 (SZTRY) at [6]. The merits of the proposed substantive application are to be assessed at a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 (MZABP) at [62]-[63].
Length of and explanation for the delay
The length of the delay is short, being only one day. I accept that the applicant took steps to attempt to file an application on or before 29 September 2020, and that those attempts were not successful. I accept that the applicant has provided an adequate explanation for a one day delay.
The short length of the delay and the explanation for the delay are factors that weigh in favour of granting the extension of time.
Prejudice to the respondents
The Minister does not claim to face any specific prejudice beyond that associated with the public interest in the finality of administrative decision-making. I do not accept that the Minister faces any substantive prejudice as a result of the application being filed just one day late. However, an absence of prejudice does not, of itself, warrant the grant of an extension of time: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 349; [1984] FCA 186; SZTRY at [6].
Assessment of merits at a reasonably impressionistic level
In assessing the merits of the proposed substantive application for the purposes of deciding whether to extend the time for filing the application, I am required to do so at a reasonably impressionistic level: MZABP at [62]-[63]; DHX17 at [68].
The applicant can only succeed in relation to the substantive application if there is jurisdictional error in the Authority decision. Accordingly, when I assess whether the substantive application has reasonable prospects of success, I am considering whether the applicant can advance a reasonably arguable case that the Authority decision is affected by jurisdictional error.
The concept of jurisdictional error was explained by Nettle and Gordon JJ in the
High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
In the original application, the applicant raised two proposed grounds relevant to the substantive application (transcribed without alteration):
1.That the decision of the Second Respondent Immigration Assessment Authority falls into an error of law and/or jurisdictional error. The Reviewer made facts finding error, ignored relevant material and relied on irrelevant in reaching their decisions and reasons on 25 August 2020.
2.Such an error of law is a Jurisdictional error which will invalidates decision of the Immigration Assessment Authority.
In substance, proposed ground 2 is simply a statement which purports to express the legal effect of proposed ground 1, if established.
On the morning of the hearing, the applicant provided three documents to the Court in support of his grounds. The first of these was a submission to the Court, which relevantly states:
Referring to para 52 of the page 292 of the Green Book, The IAA admits that myself being the Sri Lankan Muslim had expressed my concern about the mistreatment of Muslims at the protection visa interview referring to abuse and threats harm to Muslims.
Further IAA stated that since the delegate’s decision the 2109 Easter bombings occurred resulting in over 250 deaths and many injuries and these had a significant impact on the security situation in Sri Lanka, particularly for Muslims. Some reports are that initially up to two thousands Muslims had been questioned and many detained as extremists on the basis of limited evidence. Security measures put in place included military checkpoints on major Muslim travel routes. Large numbers of Muslims were detained under the PTA following the attacks and I note the concerns expressed in letters of support submitted by the applicant about the application of the PTA.
Referring to paragraph 57 of the page 293 of the Green Book, the IAA stated that DFAT assesses there is potential for more reprisal attacks against the Muslim community and broader civil unrest following the Easter Sunday terrorist attacks and I have considered if there is a real chance the applicant would face harm as a Muslim should he return to Sri Lanka.
Here the IAA had considered the DFAT report which stated that there is potential for more reprisal attacks against the Muslim community and broader civil unrest, but The IAA was wrong to conclude that “Overall IAA find that there is not a real chance the applicant ( myself) would face serious harm on the basis of being Muslim”.
I submit that IAA failed to properly take into account relevant issues or facts before concluding that overall there is not a real chance the applicant would face serious harm on the basis of being Muslim”.
The other documents provided by the applicant were two articles about the situation for Muslims in Sri Lanka. In circumstances where the applicant is self-represented, I accepted these as evidence, but invited submissions as to weight. Ms Taggart for the Minister submitted that no weight should be placed on the two articles. I agree. I have placed no weight on these two articles when assessing the merits at a reasonably impressionistic level. As I explained to the applicant at the hearing, the Court cannot engage in merits review and assess whether he meets the criteria for a protection visa. There is no evidence before the Court to suggest that the articles were before the Authority or the delegate, and one of them post-dates the Authority’s decision. The articles do not establish jurisdictional error in the Authority’s decision.
For the following reasons, I am not satisfied that the proposed grounds raised by the applicant in his application or in his submissions have any realistic prospects of success, assessed at a reasonably impressionistic level.
Failure to take into account relevant information
The main complaint by the applicant appears to be that the Authority failed to take into account relevant information in reaching its decision. The applicant has not identified with any precision which relevant information the Authority failed to take into account. However, based on his written submissions and his oral submissions, the applicant’s main assertion appears to be that the Authority should have paid greater regard to the harm that Muslim people may face, including its own findings that Muslims do face some problems in Sri Lanka.
To establish that the Authority has failed to take into account a relevant consideration, it is not enough to assert that the Authority did not give enough weight to a certain consideration. The weight to be given to information is generally a matter for the Authority as part of its
fact-finding process: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at [15(d)]. Rather, the applicant would need to establish that the Authority did not take into account the relevant information at all.
Here, the Authority has clearly had regard to information regarding the treatment of Muslim people in Sri Lanka and the Authority spent several paragraphs addressing this issue. These paragraphs are set out later in this judgment. The DFAT country information referred to in the applicant’s submissions was clearly taken into account by the Authority. It is well-established that the choice of country information and the weight to be given to that information is generally a matter for the administrative decision-maker, in this case the Authority: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. The applicant did not provide any specific country information to the delegate or the Authority and the Authority was not under any obligation to refer to other country information in relation to its assessment of the applicant’s claims. Any ground based on failure to have regard to information regarding the treatment of Muslim people in Sri Lanka has no meaningful prospect of success.
To the extent that the applicant may be suggesting that the Authority should have had regard to the new information he provided to the Authority, which did not meet the requirements of s 473DD of the Migration Act, this is addressed below.
The applicant has not otherwise attempted to identify any relevant information that the Authority failed to take into account and, having reviewed the matter at a reasonable impressionistic level, I have not otherwise identified any relevant information that might reasonably be seen as the subject of the applicant’s proposed ground.
Taking into account irrelevant information
The applicant has suggested in proposed ground 1 that the Authority has taken into account irrelevant material, but he has not identified what material the Authority had regard to that the applicant suggests was irrelevant.
I have reviewed the Authority’s decision and do not identify any irrelevant material that was relied on by the Authority. The Authority had regard to information and evidence provided by the applicant to it and the delegate, various documents on the Department file which were referred to the Authority, and various country information which was either considered by the delegate or which otherwise was new information which met the requirements of s 473DD of the Migration Act.
The Authority was entitled to have regard to all of this material. Any proposed ground based on an allegation that the Authority had regard to irrelevant material has no meaningful prospect of success.
Illogicality or Irrationality
Some of the applicant’s complaints in proposed ground 1 and in his written submission in relation to errors in the Authority’s fact finding function might properly be read as an invitation for the Court to engage in impermissible merits review. As explained to the applicant at the hearing, the Court has no power to review the merits of his application for a visa.
However, I have endeavoured to read the grounds broadly in circumstances where the applicant is self-represented. In my view, interpreted broadly, the applicant’s written submission, and in particular the penultimate paragraph of that submission, may be interpreted as an assertion that the Authority’s finding that he would not face a real chance of serious harm as a Muslim was illogical or irrational, given its reference to country information regarding reprisal attacks against Muslims for the 2019 Easter Sunday bombings and broader civil unrest.
The relevant paragraphs of the Authority decision in relation to the treatment of Muslims read as follows (reproduced without alteration, footnotes omitted):
52.The applicant has expressed his concern at mistreatment of Muslims and at the protection visa interview referred to general abuse of, and threats of harm to Muslims. The applicant did not indicate he had been in harmed in Sri Lanka on the basis of his Muslim faith, beyond the fact he supported a Muslim political party. Nor did he indicate any difficulty in practising his faith. He expressed his concern as to the ability of a political person to have a rival killed and referred to media reporting of abuse of Muslims and noted if a normal person can openly threaten a Muslim in the presence of a police officer, as was reported in the media, political rivals could have someone killed. However I have not accepted that the applicant was of ongoing concern to his uncle's political rivals.
53.The country information before me shows that there has been some friction between Muslims and Buddhists who are largely from the majority Sinhalese ethnic group. In 2015 DFAT reported that the Rajapaksa government sanctioned religious discrimination and supported the radical nationalist Buddhist Bodu Bala Sena (BBS) group. This culminated in violent riots in June 2014 in which three Muslims were killed and many injured. But as a result of the change of government in 2015 the activities of the BBS drastically reduced.
54.Since the delegate's decision the 2109 Easter bombings occurred resulting in over 250 deaths and many injuries and these had a significant impact on the security situation in Sri Lanka, particularly for Muslims. The bombings were a coordinated terrorist attack by local Islamic extremists. The bombings targeted luxury hotels and places of Christian worship mostly in Colombo, Negombo and Batticaloa. The authorities reacted with counter-terrorism measures against the perpetrators resulting in those involved, their associates and those suspected of being involved being arrested under widespread emergency powers. However some reports are that initially up to two thousands Muslims had been questioned and many detained as extremists on the basis of limited evidence. Security measures put in place included military checkpoints on major Muslim travel routes. Large numbers of Muslims were detained under the PTA [Prevention of Terrorism Act 1979 (Sri Lanka)] following the attacks and I note the concerns expressed in letters of support submitted by the applicant about the application of the PTA.
55.As a result of these attacks Muslims were the subject of reprisal and vilification. DFAT reports a number of serious reprisal attacks, many which include physical violence. Mosques and Muslim businesses and property were attacked by Sinhalese mobs. There was concern the authorities did not provide sufficient protection to the Muslim community and Muslim politicians and the Muslim provincial governors of the Western and Eastern provinces resigned en masse in protest at the perceived failure to protect the community. Of these most returned to their ministerial and cabinet positions after their protest.
56.Prior to the Easter attacks there had been periods of unrest in 2018; the in February where Buddhist nationalist groups perpetrated arson attacks against Muslim-owned residences, shops and a mosque in the Eastern Province following rumours that a Muslim restaurant was mixing ‘sterilisation drugs’ in its food to make Sinhalese women infertile. More significant violence in March by reports of a Sinhalese man being assaulted by a group of Muslims following a traffic accident. Large contingents of police were deployed in the Kandy area to manage the rioting and violence in which four people (two Muslims and two Sinhalese) were killed and dozens injured and a total of 280 people were arrested in relation to the violence.
57.DFAT assesses there is potential for more reprisal attacks against the Muslim community and broader civil unrest following the Easter Sunday terrorist attacks and I have considered if there is a real chance the applicant would face harm as a Muslim should he return to Sri Lanka.
58.In this regard I also consider it significant to take into account the election Gotabaya Rajapaksa as President in November 2019 and the results of the recent general election conducted in August 2020 in which the Rajapaksa brothers and their Sri Lanka Podujana Party (SLPP) secured a two-thirds majority in the parliament.
59.Gotabaya Rajapaksa is the brother of war-time President Mahinda Rajapaksa and he served as his Minister of Defence. The Rajapaksa regime has been criticised as perpetrating human rights abuses in the push to end the civil-war and crush the LTTE and Tamil separatism. I accept that members of the minority groups may be concerned as to the return of the Rajapaksas to power and media reporting recounts fears their majority will allow the incoming government to rollback constitutional changes and overturn reforms made by the previous government. President Gotabaya Rajapaksa won the November 2019 election running a nationalist campaign with a promise of security and crushing religious extremism following 2019 terrorist attacks and the Muslim minority group that has been identified as the focus of concern by the incoming government.
60.However it is important to note the context of the repressive actions of the former Rajapaksa government being at the end of the civil war and in the aftermath of the war. It was in this environment that the excesses of human rights abuse were committed and continued to be committed in the aftermath of the war in attempts to quash any resurgence of the LTTE.
61.The failure of both the previous Rajapaksa and Sirisena governments to bring perpetrators of human rights abuses to justice has been widely criticised by various agencies. I accept that the incoming Gotabaya Rajapaksa government may continue to suppress attempts to bring human rights abusers to justice or prosecute those responsible for war crimes and take steps to roll-back past reforms in this regard but I am not satisfied that such would impinge on the Muslim population in general or Muslims with a profile similar to that of the applicant such as to amount to, or result in serious harm.
62.I have considered the country information regarding communal violence against Muslims in recent years and the incidents of anti-Muslim harassment and violence perpetrated by the BSS and other extremist Buddhist groups and the significant attacks on Muslims in the wake of the Easter attacks. I have also taken into account the return of the Rajapaksas to power. While I accept the reports of the 2018 violence and the reprisals following the 2019 terrorist attacks would be of concern the reaction of authorities to attacks included a large scale military and police deployment, blocks on instant messaging and social media to counter social media platforms inciting violence; curfews were extended and in 2018 a country wide state of emergency was imposed for ten day as a result of the 2018 attacks. In 2019 when Muslims criticised lack of effective action Muslim politicians mobilised in protest to effect greater action. Overall I find that there is not a real chance the applicant would face serious harm on the basis of being Muslim.
The High Court explained the tests for illogicality and irrationality in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16. In that case, Crennan and Bell JJ said at [131] and [135]:
[131] … The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] … Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
As can be seen from the above extract of the Authority decision, in the present case, the Authority acknowledged that there was a heightened security risk to Muslims in Sri Lanka following some violence in 2018 and the 2019 Easter bombings, and considered the risk of communal violence to Muslims taking into account a range of country information. However, the Authority gave reasons, in particular in paragraphs [60]-[62] extracted above, as to why that heightened security risk would not give rise to a real chance that the applicant would suffer serious harm. Those reasons include that the concerns regarding the Rajapaksa government arose out of actions during the civil war and its aftermath; that any failure to bring past human rights abusers to justice would not impinge on the Muslim population in general or someone with the applicant’s profile, and that government action has been taken in response to the incidents in 2018 and 2019.
The Authority’s reasons for its conclusions demonstrate a logical and probative basis for the decision. It cannot be said that no logical decision-making could have reached the conclusion that the Authority did on the evidence before it. It appears, looking at the matter at a reasonably impressionistic level, that this is a matter about which reasonable minds may differ, and the applicant would be unable to meet the high threshold required to establish illogicality or irrationality. Any ground based on illogicality or irrationality does not have sufficient prospects of success to warrant the grant of an extension of time.
New information before the Authority
The Minister in his written submissions referred to the Authority’s conclusion that certain of the new information provided by the applicant did not meet the requirements of s 473DD of the Migration Act, and therefore could not be taken into account by the Authority.
Section 473DD provides that the Authority must not have regard to new information that was not before the delegate unless there are exceptional circumstances to justify considering the new information (s 473DD(a)) and, in the case of new information provided by the referred applicant, either:
(a)the referred applicant satisfies the Authority that the new information was not, and could not have been, provided to the Minister before the Minister made the decision under s 65 (s 473DD(b)(i)); or
(b)the referred applicant satisfies the Authority that the new information is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims (s 473DD(b)(ii)).
The High Court in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 (AUS17) concluded that, in assessing whether new information provided by a referred applicant meets the criteria in s 473DD of the Migration Act, the Authority must first assess the new information against both limbs of s 473DD(b) before considering whether s 473DD(a) is met: see AUS17 at [11]. If the Authority finds that either or both of the limbs in s 473DD(b) are satisfied, that is a circumstance which must be factored into account in assessing whether the applicant meets the criteria in s 473DD(a).
I agree with the Minister’s submission that, at a reasonably impressionistic level, the Authority has assessed the new information against the requirements of s 473DD of the Migration Act in a manner that is consistent with AUS17.
The Authority found that there was new information contained in the applicant’s statement dated 16 October 2016, namely, that the applicant had a good relationship with Navy friends and came to know information about the smuggling activities, that opposition party members became aware of this and lodged a complaint with the police, and that the police visited his family very often to collect information about the applicant. The Authority said at [9] that the applicant had not explained why the information was not or could not have been provided to the Minister. This amounts to a clear finding for the purposes of s 473DD(b)(i). The Authority considered the credibility of the new information at [10] to [13] and made a clear finding at [13] that it was not satisfied that the new information was credible. This shows that the Authority also considered s 473DD(b)(ii). Having found that neither limb of s 473DD(b) was satisfied, the Authority could not have regard to the new information.
The Authority also found that information about an incident that took place in a village in Mannar District on 18 October 2016 and an untranslated news article dated 19 October 2016 said to relate to burglary incidents in the area was new information. The Authority made a clear finding at [15] that the information post-dates the delegate’s decision and this finding is sufficient to show that s 473DD(b)(i) was met. It may be inferred from the Authority’s finding at [15] that the new information ‘relates to general criminal activity and there is no apparent link to the applicant’s claims or his profile supporting his uncle’s political aspirations, or otherwise’ that the Authority was not satisfied that the new information was personal information. In any event, as general country information, the new information about the incident in Mannar District on 18 October 2016 could not be credible personal information for the purposes of s 473DD(b)(ii): see AUS17 at [24] per Edelman J. The Authority also found that there were not exceptional circumstances to justify considering this new information. It is apparent that the Authority had regard to all of the reasons in [15] in reaching its finding that there were not exceptional circumstances to justify considering the new information, including its positive finding in relation to s 473DD(b)(i).
At a reasonably impressionistic level, any ground alleging that the Authority did not properly apply s 473DD of the Migration Act has no realistic prospects of success.
Reasonably impressionistic assessment of merits
At a reasonably impressionistic level, none of the grounds raised directly or indirectly by the applicant have any meaningful prospects of success. An extension of time may be refused, even where the delay is short, where the substantive application has no prospects of success: Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59 at [14]; SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23]. In this case, I consider that the applicant has no prospects of success in the substantive application and it is appropriate to refuse the extension of time application. This is the case notwithstanding that there is a reasonable explanation for the short delay and no substantive prejudice to the Minister.
CONCLUSION
The application for an extension of time is dismissed.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Dated: 2 December 2021
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