MZZQQ v Minister for Immigration

[2015] FCCA 977

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZQQ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 977

Catchwords:
MIGRATION – Refugee Review Tribunal – extension of time application – WZAPN – poor prospects of success.

Legislation:
Immigration and Emigration Act 1948 (Sri Lanka)
Migration Act 1958, ss.477(1), 477(2)

Cases cited:
BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39
SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: MZZQQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1293 of 2013

Judgment of: Judge Riley

Hearing date: 9 February 2015

Date of last submission: 9 February 2015

Delivered at: Melbourne

Delivered on: 20 April 2015

REPRESENTATION

Counsel for the applicant: The applicant appeared in person

Solicitors for the applicant: The applicant was not represented

Counsel for the first respondent: Catherine Symons

Solicitors for the first respondent: Sparke Helmore

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore

ORDERS

1. The application for an extension of time filed on 15 August 2013 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1293 of 2013

MZZQQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for an extension of time in which to file an application seeking review of a decision made by the Refugee Review Tribunal.  In that decision, the tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant was not represented before this court.

Extension of time application

1. The tribunal’s decision was made on 10 January 2013. Under s.477(1) of the Migration Act 1958 (“the Act”), any application to this court is to be filed within 35 days of the date of the tribunal’s decision.  The application to this court was not filed until 15 August 2013.  Consequently, the application was 182 days late.

2. Under s.477(2) of the Migration Act 1958, the court has power to extend the time for the filing of an application if the court is satisfied that it is necessary in the interests of the administration of justice to do so.

3. In considering whether to grant an extension of time, the court must consider:

   a)the length of the delay;

   b)the reasons for the delay;

   c)the prejudice to the parties of the grant or refusal of an extension of time;

   d)the public interest in there being an end to litigation about the efficacy of the acts or decisions of public bodies or officials; and

   e)the merits of the substantive application.

4. As stated, the delay was 182 days.  The applicant explained in his application filed on 15 August 2013 that:

   1.My English proficiency is poor.  With the limited support in terms of bringing the case to Judicial Review was very difficult.  I could not locate Tamil community and the refugee support groups in time to prepare this application package.

   2.I could not get a lawyer to fill this set of forms for me.  I am filing this case with the help of some community volunteers in Melbourne and Sydney.

   3.I am aware that I am late by a few months, and I am extremely sorry about this.  I am worried about too many things in isolation.  Please accept this application.

5. The applicant did not address the question of an extension of time in his affidavit in support of his application.  He did not file an outline of submissions.  When the relevant issues were outlined by the court to the applicant, he said that he was not in a position to identify faults in the tribunal process.

6. The applicant would obviously suffer considerable prejudice if an extension of time is not granted.  The first respondent did not point to any prejudice to him from the grant of an extension of time.

7. For the reasons which follow, I consider that the applicant does not have a reasonable prospect of success in this matter.

The applicant’s claims

1. In a statutory declaration made on 10 July 2012, the applicant claimed that:

   a)he was a 22-year-old Tamil from Sri Lanka;

   b)in 2009, he started to campaign for the UNP and Fonseka, by handing out flyers, doorknocking, organising political meetings and taking people to the meetings;

   c)Fonseka won the most votes in the applicant’s area but did not win nationally;

   d)on 26 January 2010, some people came to the applicant’s house and beat up the applicant’s father and then the applicant;

   e)they chastised the applicant about the election results;

   f)the applicant ran away and stayed in the forest for a few hours and returned home when he believed it was safe;

   g)he and his father reported the matter to the police the following day;

   h)the police refused to accept the complaint;

   i)the applicant went to his aunt’s place for one month;

   j)the applicant initially reduced his political activity but then resumed such activity by organising a demonstration against Fonseka’s arrest, putting up posters, doorknocking and handing out flyers;

   k)on 20 January 2012, the applicant took about 100 people from his area to a protest against the incarceration of Fonseka;

   l)on 5 March 2012, while the applicant was standing on the street smoking, two large men grabbed him and dragged him into a white van;

   m)the applicant was blindfolded and beaten;

   n)he was taken to a house where some people speaking Singhalese told him he should not have been involved and that he had been warned before;

   o)the applicant managed to escape;

   p)on 13 March 2012, while the applicant was at his father’s cafe, a man with a fully covered face pointed a pistol at the applicant and gestured for him to get into a white van;

   q)the applicant ran as fast as he could;

   r)the applicant feared that government supporters would abduct, extort, torture or kill him because he supported Fonseka and the UNP;

   s)he feared that he would be persecuted for belonging to a particular social group consisting of failed Tamil asylum seekers and because of his Tamil ethnicity.

The Tribunal’s reasons

1. In its decision, the tribunal:

   a)set out the relevant law relating to the Refugee Convention and the complementary protection criterion;

   b)set out the applicant’s statutory declaration;

   c)noted that the applicant was represented by a registered migration agent;

   d)set out a summary of the tribunal hearing; and

   e)set out a good deal of country information.

2. The tribunal found the applicant’s evidence in the hearing to be vague, contradictory and lacking in detail. The tribunal found the applicant’s evidence about his activities to be vague, confusing and lacking in detail. The tribunal also noted an inconsistency in the applicant’s evidence and noted a failure to mention a particular incident in his statutory declaration that the applicant described in his oral evidence.

3. The tribunal did not accept that the applicant was a member or active supporter of the UNP or had campaigned for Fonseka in the 2010 presidential campaign or afterwards. Consequently, the tribunal did not accept that the applicant was attacked for reasons of his political opinion, or that the police refused to take a formal complaint about the applicant being attacked. The tribunal did not accept that the applicant was abducted on 5 March 2012. The tribunal did not accept that the applicant had experienced any of the problems that he claimed as a result of his alleged political opinion and activities. Consequently, the tribunal did not accept that the applicant faced a real chance of persecution based on his alleged political opinion.

4. In relation to the applicant’s claims arising from him being a failed asylum seeker, the tribunal noted the absence of procedures which would allow the Sri Lankan authorities to identify the applicant as a person who had sought protection in Australia. The tribunal considered that even if such an identification were made, the applicant would not suffer any harm beyond being detained for some hours for questioning. The tribunal did not accept that such detention would amount to serious harm.

5. In relation to the question of illegal departure, the tribunal noted country information that up until 16 October 2012, no returnees from Australia had been charged under the Immigration and Emigration Act 1948 (Sri Lanka). The tribunal then said, at paragraph 99 of its reasons for decision:

   Even if the Tribunal accepted that the applicant would face a penalty for departing Sri Lanka illegally, the Tribunal finds that this would not represent more than the enforcement of a law of general application, or that the applicant would be singled out for prosecution, or for heavier penalties, in a discriminatory fashion for a Convention reason.

6. The tribunal noted that the applicant had been unable to articulate with any degree of clarity the harm he might face because of his Tamil ethnicity. The tribunal concluded that the applicant did not have a subjective fear of harm based on his Tamil ethnicity.

7. The tribunal considered the complementary protection criterion.  As the tribunal did not accept that the applicant had been of any adverse interest for reasons of his political opinion, the tribunal did not accept that the applicant faced significant harm for that reason.

8. In relation to the applicant’s illegal departure from Sri Lanka, the tribunal cited country information to the effect that penalties are seldom enforced, except against:

   a)those who have organised immigration fraud;

   b)those who have an outstanding arrest warrant against them; or

   c)those who are on a blacklist.

9. The tribunal did not accept that the applicant fell into any of those categories and consequently did not accept that the applicant faced significant harm by reason of his illegal departure from Sri Lanka.

10. The tribunal considered that the applicant did not face a real risk of significant harm in relation to being a failed asylum seeker because the tribunal did not accept that the process of questioning amounted to significant harm as defined.

11. Consequently, the tribunal affirmed the decision not to grant the applicant a protection visa.

Ground of review

1. The ground of review in the application filed on 15 August 2013 is:

   That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.

   More details will be provided by the legal representative.

2. As mentioned above, the applicant was not legally represented and did not provide further details of his grounds of review. More particularly, the applicant has not identified any legal error made by the tribunal.

3. The first respondent noted that the tribunal had arguably made the error identified in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. However, the first respondent argued that WZAPN was wrongly decided.  Recognising that WZAPN was binding on this court, the first respondent argued that the tribunal had made an implicit finding that the possible detention of the applicant would be pursuant to a law of general application and would therefore not constitute Convention related harm.

4. Be that as it may, the Full Court of the Federal Court has now held in a series of decisions that WZAPN was wrongly decided. Those decisions are SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39, SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40, BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41. In SZTEQ the Full Court said:

   46.In our opinion, on its proper construction, s 91R does not forbid a qualitative assessment of claimed detention or imprisonment with a view to establishing whether or not it rises to the level of “serious harm” so as to constitute persecution, if the detention or imprisonment is for a Convention reason and the other aspects of s 91R are satisfied.

   …

   154.… we do not consider that WZAPN correctly decided the construction of s 91R(2)(a). In our opinion, s 91R(2)(a) should not be construed as meaning that any deprivation of liberty constitutes serious harm for the purposes of

   
   

   s 91R(1)(b) and Art 1A(2).

5. Consequently, on the law as it now stands, the tribunal did not err in making a qualitative assessment that being detained for some hours did not amount to serious harm.

6. There does not appear to be any other error in the tribunal’s decision or decision-making process. The tribunal accurately set out the relevant law and appears to have accurately applied it. The tribunal appears to have conducted a fair hearing, in particular, by alerting the applicant to adverse issues and relevant country information.

7. All in all, I do not consider that the applicant’s grounds of review have a reasonable prospect of success. I have not been able to detect any arguable jurisdictional error in the tribunal’s decision.

Conclusion

1. The applicant’s delay in lodging the application to this court, being six months, was fairly long. Although his explanation was not given on affidavit, it may be readily accepted. The first respondent has not pointed to any prejudice in the event of an extension of time being granted. Nevertheless, in view of the substantive application having poor prospects of success, it is proper that the application for an extension of time be refused. The applicant will also be ordered to pay the first respondent’s costs of the proceeding.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  20 April 2015