EZZ17 v Minister for Home Affairs

[2019] FCA 763

FEDERAL COURT OF AUSTRALIA

EZZ17 v Minister for Home Affairs [2019] FCA 763

Appeal from:	Application for extension of time:  EZZ17 v Minister for Immigration & Anor [2018] FCCA 2996
File number:	WAD 574 of 2018
Judge:	MCKERRACHER J
Date of judgment:	23 May 2019
Date of publication of reasons:	24 May 2019
Catchwords:	MIGRATION – application for an extension of time – where the Immigration Assessment Authority affirmed the decision to refuse to grant the applicant a protection visa – where the Federal Circuit Court dismissed the application for judicial review – no jurisdictional error demonstrated – where the application for an extension of time turned on the merits of the draft grounds of appeal sought to be pressed – where the draft grounds of appeal challenged the Authority’s assessment of the facts and country information – no error in the primary judge’s decision demonstrated
Date of hearing:	23 May 2019
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	19
Counsel for the Applicant:	The Applicant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Mr T Lettenmaier
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent submits to any order of the Court, save as to the question of costs

ORDERS

WAD 574 of 2018

BETWEEN:

EZZ17

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	23 MAY 2019

THE COURT ORDERS THAT:

1.The application be refused.

2.The applicant pay the costs of the first respondent, 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
REVISED FROM THE TRANSCRIPT

MCKERRACHER J:

1. This is an application for an extension of time within which to appeal a decision of the Federal Circuit Court of Australia: EZZ17 v Minister for Immigration & Anor [2018] FCCA 2996. The delay is only moderate and the Minister, the first respondent, accepts that there is no specific prejudice to the Minister other than general delay. The real question is whether the applicant’s draft grounds of appeal establish that the decision of the primary judge was, in some respect, attended by sufficient error or doubt to warrant an extension of time being granted. The history and the claims are set out in very extensive detail in the primary judgment of the Federal Circuit Court and other than to highlight a few specific matters, as I will, it is unnecessary now to repeat all that history and those facts.

   BEFORE THE AUTHORITY

2. The Immigration Assessment Authority (the second respondent), having regard to the country information as well as the applicant’s particular circumstances, was not satisfied that he was at risk of harm from societal discrimination if returned to Sri Lanka as a result of his Tamil ethnicity and did not consider he was at risk of harm for reason of any real or perceived links to the Liberation Tigers of Tamil Eelam (the LTTE) or any imputed political opinion or because of certain scarring. 

3. In coming to that conclusion, the Authority:

   ·relied on country information;

   ·noted that the applicant had never been charged, detained, taken to court or imprisoned by the authorities and that they had shown no interest in his whereabouts since 2013;

   ·did not accept that visits to the applicant, the reporting requirements and visits to his wife were demonstrative of the Authority specifically targeting the applicant as opposed to routine monitoring;

   ·did not accept the submission that there would be serious consequences because of applicant’s departure while under a reporting requirement and that his father had been killed by the Sri Lankan Army; and

   ·was not satisfied that scarring continued to contribute to a person’s profile as a suspected LTTE member. 

4. The Authority accepted that the applicant would be considered by authorities in Sri Lanka to be a failed asylum seeker who departed illegally and discussed the consequences of that, but found that Sri Lankan law was a law of general application which did not constitute any form of persecution.  The Authority affirmed the decision not to grant the applicant a protection visa. The applicant sought judicial review in the Federal Circuit Court.

   IN THE FEDERAL CIRCUIT COURT

5. Before the Federal Circuit Court, the applicant advanced three grounds of error were pressed as follows: 

   1.        Jurisdictional error. 

   2.Bias based on conscious or unconscious prejudice by ignoring relevant materials.

   3.        Identifying a wrong issue on a wrong question. 

6. Additionally to these matters, an annexure to the applicant’s affidavit was taken to provide some particularisation of the grounds in the application in referring to the report of the United Nations High Commissioner for Refugees (UNHCR) entitled ‘International Truth and Justice Project’ as supporting his claims.

7. However, the primary judge in an extensive judgment, seven months later, with very careful reasons, dismissed each of the grounds which were advanced by the applicant. 

   IN THIS COURT

8. The applicant now seeks an extension of time within which to appeal from the Federal Circuit Court.  As I have said, the delay is only moderate. 

9. In submissions before me the applicant stressed that he would be in danger returning home and he wanted more time. 

10. He did not address, however, in his arguments to me the draft grounds of appeal, which I will come to.  Despite explanation that the role of this Court was to identify whether or not there is error in the Federal Circuit Court’s judgment, no specific error of that Court was identified by the applicant. 

11. The applicant repeated that he did not understand the procedure involved with the Authority, but I note that the applicant was represented before the Authority and did provide documents.  The applicant referred again today to his scarring and I have indicated that this was also considered by the Authority. 

    Grounds of appeal

12. The draft notice of appeal to this Court raises seven grounds:

    a.No adequate attention was paid to the fact that [the applicant] had worked for the Liberation Tigers of Tamil Elam (LTTE) and was arrested and detained on a number of occasions.

    b.        While in detention [the applicant] was harassed and was lucky to escape.

    c.The provisions of the Prevention of Terrorism Act were not examined in the context of [the applicant’s] arrest and detention and the sure possibility of [the applicant’s] arrest under this act on [the applicant’s] return.

    d.The Primary Judge failed to examine jurisdictional error and the principle of a fair proceeding in regard to [the applicant’s] case.

    e.Jurisdictional error was caused by the [Authority’s] failing to exercise proper jurisdiction by not examining the provisions of the Prevention of Terrorism Act and not making an adequate and proper examination of the country situation pertaining to the plight of young Sri Lankan Tamils like [the applicant].

    f.The current political situation in Sri Lanka and the deployment of over 75% of the Sri Lankan army in the Northern part of Sri Lanka was an ongoing situation which at the time [the applicant’s] case was heard is relevant both at the time [the applicant’s] claims were examined by the [Authority] and the Primary Judge.

    Reference was made to various paragraphs of the judgment without saying anything about them.

    Consideration

13. Technically, many of the grounds are defective in that they do not for the most part point to specific error on the part of the primary judge. There is one in particular which does point to error but does not particularise what it was.  In substantial measure, the applicant is asking this Court to re-examine the facts and to provide a merits review of his case.  This is not a course which is open to me.  As I have explained to the applicant, the role of this Court is to detect whether or not there was error in the decision of the Federal Circuit Court.

14. In relation to the substance of those matters, I should also say that the Authority did accept that the applicant had worked for the LTTE and that he was arrested and detained.  It specifically referred to the legislation which the applicant complained was not considered.  It took into account its effect on the applicant and it emphasised that the applicant had been questioned and detained by Sri Lankan authorities in 2009 and 2010, but had never been charged under that legislation.  The Authority did not consider these matters resulted in the applicant being at risk of harm if he returned to Sri Lanka because of his real or perceived links to the LTTE because it concluded the applicant did not have a profile which relevant country information would suggest would result in his coming to the adverse attention of Sri Lankan authorities.

15. The findings on those matter were within the province of the Authority.  They were not irrational or unreasonable.  They were explained.  The primary judge also referred to those claims and those findings and was unable to detect any error.  To the extent that the applicant complains about the Authority’s treatment of country information, there is no error.  The choice of weight to be given to that information is a matter for the Authority.

16. In substance, the grounds of appeal complain about the factual conclusions.  The exception to which I referred was a complaint in ground 4 that the primary judge failed to examine jurisdictional error and procedural fairness.  It is clear, in my view, that the primary judge’s reasons demonstrate both those matters were considered in detail.  He referred to the relevant principles and considered each of the grounds and the applicant’s contentions.  Those matters were all amply covered in very detailed reasons by the primary judge.  The fifth draft ground has also been covered in that analysis. 

17. The sixth draft ground refers to the current political situation in Sri Lanka.  Again, this is a factual or merits challenge, but it is not apparent from the Authority’s reasons that a military build-up in Northern Sri Lanka was raised by the applicant.  The Authority did give consideration to a variety of up-to-date and authoritative country information sources including details of government activity in Northern Sri Lanka including the 2017 Department of Foreign Affairs and Trade report in reaching its conclusion that the applicant was not owed protection obligations.  There is nothing to suggest that the analysis by the primary judge in this respect was erroneous.

18. Finally, draft ground 7 simply refers to several paragraphs of the primary judge’s reasons.   This ground carries the matter no further; no specific complaint is made in relation to them. 

    Conclusion

19. In those circumstances, none of the seven proposed grounds identifies any appellable error or in any other way raise any sufficiently arguable case which would warrant an extension of time.  Therefore, the application for an extension of time must be refused with costs. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate:

Dated:       24 May 2019