Ewx17 v Minister for Immigration

[2018] FCCA 2705

FEDERAL CIRCUIT COURT OF AUSTRALIA

EWX17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2705

Catchwords:
MIGRATION – Immigration Assessment Authority – application for an extension of time under s.477 of the Migration Act 1958 (Cth) – extension of time not necessary in the interests of the administration of justice – application for an extension of time under s.477 dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 477

Applicant: EWX17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3411 of 2017

Judgment of: Judge Street

Hearing date: 20 September 2018

Date of Last Submission: 20 September 2018

Delivered at: Sydney

Delivered on: 20 September 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr L Leerdam
DLA Piper

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

DATE OF ORDER: 20 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3411 of 2017

EWX17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for an extension of time under s477 of the Migration Act1958 (Cth) (“the Act”)in respect of a decision of the Immigration Assessment Authority (“the Authority”) made under Part 7AA on 26 September 2017 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise Visa.

2. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country. The applicant was found to be of Tamil ethnicity from the Northern Province of Sri Lanka, and the applicant claimed to fear harm as a Tamil and as an imputed Liberation Tigers of Tamil Eelam (“LTTE”) supporter and a failed asylum seeker who departed his country illegally.

3. These proceedings were commenced on 8 November 2017, eight days outside the 35 day period required under s 477 of the Act. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing in the application for an extension of time, and the applicant confirmed that he understood the explanation given by the Court.

4. The applicant has complied with the first limb of s 477(2) by the making of an application for an extension of time. The applicant has proffered a satisfactory explanation for the delay in the present case as the Registry was closed due to flooding. The first respondent accepts that the explanation for the delay by the applicant in the present case is satisfactory. Further, no particular prejudice is alleged by the first or second respondent in relation to the delay. The first respondent however, submits that the merits of the application are insufficient to warrant an extension of time being necessary in the interests of the administration of justice.

5. On 16 March 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise Visa.

6. On 21 March 2017, the Authority wrote to the applicant explaining that the application had been referred to the Authority for review. The Authority gave the applicant an opportunity to put on submissions and new information. The Authority in its reasons identified the background to the visa application and had regard to the material given under s 473CB of the Act by the Secretary. The Authority referred to the translations of documents that were not new documents which were taken into account by the authority.

7. The Authority summarised the applicant’s claims and evidence including that the applicant was forcibly recruited in 2009 by the LTTE and that in May 2009 the applicant’s family was taken to a Sri Lankan Army camp and the applicant was reunited with his wife and children in or around August 2009. The applicant alleged he was detained in 2009 and accused or burying weapons and that he was detained for three months and released in March 2010. The applicant alleged he was again the subject of interrogation in September/October 2010 and that he was accused in mid-2011 of knowing where weapons were hidden and that in July 2012, the Terrorist Investigation Department questioned the applicant at his home. The applicant fled Sri Lanka in August 2012 and claimed that there had been further inquiries since the applicant came to Australia about his whereabouts.

8. The Authority referred to the applicant’s claims in relation to being interrogated and detained in 2009 and considered the discrepancies in the applicant’s accounts to be significant. The Authority concluded that the applicant had fabricated his claims relating to the incident so as to create a profile to apply for protection. The Authority also considered that the applicant had fabricated his claims in relation to the Criminal Intelligence Division (“CID”) abducting his brother so as to create a profile upon which to apply for protection.

9. The Authority did not accept that the CID made inquiries of the applicant’s wife in 2016 using a particular name. The Authority did not accept the CID had been to the applicant’s house looking for the applicant since his departure from Sri Lanka. The Authority found the discrepancies in the applicant’s accounts to be significant and concluded that the applicant had fabricated his claims relating to ongoing CID interests so as to create a profile to apply for protection.

10. The Authority summarised the incidents that it accepted in relation to the applicant and the applicant’s history and was not satisfied they would be sufficient to cause the applicant to be a person of interest to the Sri Lankan authorities now or in the reasonably foreseeable future. The Authority found it implausible that eight years after the end of the civil war, the applicant would continue to be of interest to the authorities in connection with buried weapons.

11. The Authority found the applicant does not fall within any of the categories in the United Nations High Commissioner for Refugees (“UNHCR”) Eligibility Guidelines referred to in the DFAT report.

12. The Authority did not accept the applicant’s claims to have had family members involved with the LTTE. The Authority was not satisfied the applicant’s Tamil ethnicity, the incidents that occurred prior to July 2012 and/or his residence in a former LTTE controlled area would be sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities. 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.

13. The Authority was not satisfied the applicant would be subjected to discrimination or economic hardship which would threaten his capacity to subsist or other treatment that may be regarded as serious harm under s 5J(5) of the Act.

14. The Authority accepted the applicant departed Sri Lanka illegally without a passport and found the imposition of a fine, surety or guarantee would not of itself constitute serious harm. The Authority found that there is not a real chance that the applicant would face a period of detention or imprisonment. The Authority found any questioning and detention that the applicant may experience would be brief and would not constitute serious harm as inexhaustibly defined in the Act

15. The Authority was satisfied the provisions and penalties of the Immigrants and Emigrants Act 1949 are laws of general application that apply to all Sri Lankans equally. The Authority was satisfied that 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.

16. The Authority was not satisfied the applicant faces a real chance of serious harm due to being a failed asylum seeker, now or in the reasonably foreseeable future if returned to Sri Lanka.

17. The Authority found that the applicant did not have a well-founded fear of persecution for reason or a combination of reasons of his race, religion, nationality, membership of a particular social group and/or political opinion now or in the reasonably foreseeable future if he returns to Sri Lanka. 

18. The Authority found the applicant did not meet the requirements of the definition of a refugee in s 5H(1) of the Act and that the applicant did not meet the criteria under s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.

The proposed ground

1. The merits of the application in the present case are a matter to be determined at an impressionistic level. The proposed ground in the application are as follows:

   1. I will be imputed with LTTE profile.

   Particulars

   I was in the Charles Unit as a fighter. I will be suspected of LTTE. I was in Zone 4 camp. From 1996 until 2009 I was away with LTTE in 2006-2007. I was participating in war.

2. From the bar table, the applicant maintained that he had been an LTTE fighter. No such claim was advanced on the material before the Authority, and no such claim fairly arose on that material.

3. The applicant’s assertion of his knowledge of weapons and being involved in combat is a claim that was not advanced before the Authority and does not give rise to any arguable jurisdictional error by the Authority.

4. The applicant also referred to the burying of weapons. The applicant being questioned by an Army commander about hidden LTTE weapons was a matter expressly referred to by the Authority in its reasons where the Authority found that incident among others, to be remote in time and ultimately found the applicant was not a person who had a well-founded fear of persecution taking into account the alleged activities as well as finding the applicant failed to meet the criteria for complementary protection. 

5. In relation to proposed ground 1, it is apparent that the Authority considered the applicant being a Tamil and being imputed with an LTTE profile, and made dispositive findings of the Authority’s reasons as summarised above. Those findings were open to the Authority for the reasons given by the Authority.  The reasons given by the Authority in considering whether the applicant would be at risk of harm on the basis of an imputed LTTE association in relation to the claims and material before the Authority as summarised above, cannot be said to lack an evident and intelligible justification.

6. The assertion in the particulars that the applicant was a fighter is not a claim that was advanced before the Authority, and no such claim fairly arose on the material before the Authority.

7. The applicant maintained that he would be at risk if returned to Sri Lanka. The applicant’s submissions are in substance, an invitation to this Court to engage in impermissible merits review. Nothing said by the applicant from the bar table identified any arguable case of jurisdictional error. 

8. The Court is not satisfied that proposed ground 1 identifies a sufficiently arguable case of jurisdictional error to make an extension of time necessary in the interests of the administration of justice.

9. Whilst the Court does accept the applicant’s explanation for the delay, the merits of the substantive application are insufficient in the present case to make an extension of time necessary in the interests of the administration of justice.

10. Accordingly, the application for an extension of time under s 477 of the Act is dismissed. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 15 November 2018